G.R. No. 93833 September 28, 1995 SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE CO R! O" A##EALS, $%& ES!

ER S. GARCIA, respondents.

ang certification mo, 0alimutan mo na 0asi hindi 0a sa a0in ma0a0ahingi. C12C1& . 1indi /#am. 3asi ang ano 0o talaga noon i5cocontinue 0o up to )*+** p.m. !S" . Bastos ka, na0alimutan mo na 0ung paano 0a pumaso0 dito sa hotel. /agsumbong 0a sa 2nion 0ung gusto mo. 4a0alimutan mo na 0ung paano 0a na0apaso0 dito %Do you thin0 that on your own ma0a0apaso0 0a 0ung hindi a0o. 'anunumbyoyan na 0ita ,Sinusumbatan na 0ita-. C12C1& . &tutuloy 0o na /#am sana ang duty 0o. !S" . 3aso ilang beses na a0ong binabali0an doon ng mga no ,sic- 0o. !S" . 4a0alimutan mo na ba 0ung paano 0a pumaso0 sa hotel, 0ung on your own merit alam 0o naman 0ung gaano 0a %0a bobo% mo. /arami ang nag5aaply alam 0ong hindi 0a papasa. C12C1& . 3umuha 0ami ng e$am noon. !S" . 6o, pero hindi 0a papasa. C12C1& . !h, ba0it a0o ang na0uha ni Dr. Tamayo !S" . 3u0unin 0a 0asi a0o. C12C1& . !h, di sana . !S" . 1uwag mong ipagmala0i na may uta0 0a 0asi wala kang utak. A0ala mo ba ma0u0uha 0a dito 0ung hindi a0o. C12C1& . /ag5ee$plain a0o. !S" . 1uwag na, hindi a0o mag5papa5e$plain sa #yo, ma0aalala 0a 0ung paano 0a puma5rito.

'A# NAN, J.: A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of uezon City alleging that the private respondent, !ster S. "arcia, in a confrontation in the latter#s office, allegedly ve$ed, insulted and humiliated her in a %hostile and furious mood% and in a manner offensive to petitioner#s dignity and personality,% contrary to morals, good customs and public policy.% 1 &n support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney#s fees and other e$penses of litigation in the amount of '()*,***.**, in addition to costs, interests and other reliefs awardable at the trial court#s discretion. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2 The transcript reads as follows+ 'laintiff Soccoro D. Ramirez ,Chuchi- . "ood Afternoon /#am. Defendant !ster S. "arcia ,!S"- . Ano ba ang nangyari sa #yo, na0alimot 0a na 0ung paano 0a napunta rito, por0e member 0a na, magsumbong 0a 0ung ano ang gagawin 0o sa #yo. C12C1& . 3asi, na0a duty a0o noon. !S" . Tapos iniwan no. ,SicC12C1& . 1indi m#am, pero ilan beses na nila a0ong binali0an, sabing ganoon . !S" . &to and ,sic- masasabi 0o sa #yo, ayaw 0ung ,sic- mag e$plain 0a, 0asi hanggang )*+** p.m., 0inabu0asan hindi 0a na pumaso0. 4gayon a0o ang babali0 sa #yo, nag5aaply 0a sa States, nag5aaply 0a sa review mo, 0ung 0a0ailanganin

%Putang-ina% sasabi5sabihin mo 0amag5ana0 ng nanay at tatay mo ang mga magulang 0o. !S" . 7ala na a0ong pa0ialam, dahil nandito 0a sa loob, nasa labas 0a puwede 0a ng hindi pumaso0, o0ey yan nasaloob 0a umalis 0a doon. C12C1& . 3asi /#am, binbali0an a0o ng mga taga 2nion. !S" . 4andiyan na rin a0o, pero huwag mong 0alimutan na hindi 0a ma0a0apaso0 0ung hindi a0o. 3ung hindi mo 0ini0ilala yan o0ey lang sa a0in, dahil tapos 0a na. C12C1& . &na5ano 0o m#am na utang na loob. !S" . 1uwag na lang, hindi mo utang na loob, 0asi 0ung baga sa no, nilapastangan mo a0o. C12C1& . 'aano 0ita nilapastanganan8 !S" . /abuti pa lumabas 0a na. 1indi na a0o ma0i0ipagusap sa #yo. 9umabas 0a na. /agsumbong 0a. 3 As a result of petitioner#s recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of 'asay City for violation of Republic Act :;**, entitled %An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes.% An information charging petitioner of violation of the said Act, dated 6ctober (, )<== is >uoted herewith+ INFORMATION The 2ndersigned Assistant City ?iscal Accusses Socorro D. Ramirez of @iolation of Republic Act 4o. :;**, committed as follows+ That on or about the ;;nd day of ?ebruary, )<==, in 'asay City /etro /anila, 'hilippines, and within the Aurisdiction of this honorable court, the above5named accused, Socorro D. Ramirez not being authorized by !ster S. "arcia to record

the latter#s conversation with said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person. Contrary to law. 'asay City, /etro /anila, September )(, )<==. /A R&A 46 /. C2 4!T A Asst. City ?isc al 2pon arraignment, in lieu of a plea, petitioner filed a /otion to uash the &nformation on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. :;**. &n an order /ay B, )<=<, the trial court granted the /otion to uash, agreeing with petitioner that )- the facts charged do not constitute an offense under R.A. :;**C and that ;- the violation punished by R.A. :;** refers to a the taping of a communication by a person other than a participant to the communication. ( ?rom the trial court#s 6rder, the private respondent filed a 'etition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution ,by the ?irst Division- of Dune )<, )<=<. 6n ?ebruary <, )<<*, respondent Court of Appeals promulgated its assailed Decision declaring the trial court#s order of /ay B, )<=< null and void, and holding that+ ETFhe allegations sufficiently constitute an offense punishable under Section ) of R.A. :;**. &n thus >uashing the information based on the ground that the facts alleged do not constitute an offense, the respondent Audge acted in grave abuse of discretion correctible by certiorari. 5

Conse>uently, on ?ebruary ;), )<<*, petitioner filed a /otion for Reconsideration which respondent Court of Appeals denied in its Resolution ) dated Dune )<, )<<*. 1ence, the instant petition. 'etitioner vigorously argues, as her %main and principal issue% * that the applicable provision of Republic Act :;** does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. 8 &n relation to this, petitioner avers that the substance or content of the conversation must be alleged in the &nformation, otherwise the facts charged would not constitute a violation of R.A. :;**. 9 ?inally, petitioner agues that R.A. :;** penalizes the taping of a %private communication,% not a %private conversation% and that conse>uently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 1+ 7e disagree. ?irst, legislative intent is determined principally from the language of a statute. 7here the language of a statute is clear and unambiguous, the law is applied according to its e$press terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would lead to an inAustice. 12 Section ) of R.A. :;** entitled, % An Act to 'rohibit and 'enalized 7ire Tapping and 6ther Related @iolations of 'rivate Communication and 6ther 'urposes,% provides+ Sec. ). &t shall be unlawfull for any person, not being authorized by all the parties to any private communication or spo0en word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spo0en word by using a device commonly 0nown as a dictaphone or dictagraph or detectaphone or wal0ie5tal0ie or tape recorder, or however otherwise described. The aforestated provision clearly and une>uivocally ma0es it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law ma0es no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute#s intent to penalize all persons unauthorized to ma0e such recording is underscored by the use of the >ualifier %any%. Conse>uently, as respondent Court of Appeals correctly concluded, %even a ,person- privy to a communication who records his private conversation with another without the 0nowledge of the latter ,will- >ualify as a violator% 13 under this provision of R.A. :;**.

A perusal of the Senate Congressional Records, moreover, supports the respondent court#s conclusion that in enacting R.A. :;** our lawma0ers indeed contemplated to ma0e illegal, unauthorized tape recording of private conversations or communications ta0en either by the parties themselves or by third persons. Thus+ $$$ $$$ $$$ Senator TaGada+ That >ualified only %overhear%. Senator 'adilla+ So that when it is intercepted or recorded, the element of secrecy would not appear to be material. 4ow, suppose, Hour 1onor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section B but would cover, for e$ample civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subse>uent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Hour 1onor, that the intention is to cover it within the purview of this bill or outside8 Senator TaGada+ That is covered by the purview of this bill, Hour 1onor. Senator 'adilla+ !ven if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings8 Senator TaGada+ That is right. This is a com lete !an on ta e recor"e" con#ersations taken without the authori$ation o% all the arties. Senator 'adilla+ 4ow, would that be reasonable, your 1onor8 Senator TaGada+ & believe it is reasonable because it is not s orting to recor" the o!ser#ation o% one without his knowing it an" then using it against him. It is not %air, it is not s ortsmanlike . &f the purposeC Hour honor, is to record the intention of the parties. & believe that all the parties should 0now that the observations are being recorded. Senator 'adilla+ This might reduce the utility of recorders.

Senator TaGada+ 7ell no. ?or e$ample, & was to say that in meetings of the board of directors where a tape recording is ta0en, there is no obAection to this if all the parties 0now. &t is but fair that the people whose remar0s and observations are being made should 0now that the observations are being recorded. Senator 'adilla+ 4ow, & can understand. Senator TaGada+ That is why when we ta0e statements of persons, we say+ %'lease be informed that whatever you say here may be used against you.% That is fairness and that is what we demand. 4ow, in spite of that warning, he ma0es damaging statements against his own interest, well, he cannot complain any more. But i% &ou are going to take a recor"ing o% the o!ser#ations an" remarks o% a erson without him knowing that it is !eing ta e" or recor"e", without him knowing that what is !eing recor"e" ma& !e use" against him, I think it is un%air. $$$ $$$ $$$ ,Congression Record, @ol. &&&, 4o. B), p. I=:, /arch );, )<(:Senator Dio0no+ Do you understand, /r. Senator, that under Section ) of the bill as now worded, i% a art& secretl& recor"s a u!lic s eech, he would be penalized under Section )8 Jecause the speech is public, but the recording is done secretly. Senator TaGada+ 7ell, that particular aspect is not contemplated by the bill. It is the communication !etween one erson an" another erson ' not !etween a s eaker an" a u!lic. $$$ $$$ $$$ ,Congressional Record, @ol. &&&, 4o. BB, p. (;(, /arch );, )<(:$$$ $$$ $$$ The unambiguity of the e$press words of the provision, ta0en together with the above5>uoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision see0s to penalize even those privy to the private communications. 7here the law ma0es no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. 7hat R.A. :;** penalizes are the acts of secretly o#erhearing, interce ting or recor"ing private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section ) of R.A. :;**. As the Solicitor "eneral pointed out in his C6//!4T before the respondent court+ %4owhere ,in the said law- is it re>uired that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed.% 1( ?inally, petitioner#s contention that the phrase %private communication% in Section ) of R.A. :;** does not include %private conversations% narrows the ordinary meaning of the word %communication% to a point of absurdity. The word communicate comes from the latin word communicare, meaning %to share or to impart.% &n its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a con#ersation, 15 or signifies the %process by which meanings or thoughts are shared between individuals through a common system of symbols ,as language signs or gestures-% 1) These definitions are broad enough to include verbal or non5verbal, written or e$pressive communications of %meanings or thoughts% which are li0ely to include the emotionally5charged e$change, on ?ebruary ;;, )<==, between petitioner and private respondent, in the privacy of the latter#s office. Any doubts about the legislative body#s meaning of the phrase %private communication% are, furthermore, put to rest by the fact that the terms %conversation% and %communication% were interchangeably used by Senator TaGada in his !$planatory 4ote to the bill >uoted below+ &t has been said that innocent people have nothing to fear from their con#ersations being overheard. Jut this statement ignores the usual nature of con#ersations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to e$pose. ?ree con#ersations are often characterized by e$aggerations, obscenity, agreeable falsehoods, and the e$pression of anti5social desires of views not intended to be ta0en seriously. The right to the ri#ac& o% communication, among others, has e$pressly been assured by our Constitution. 4eedless to state here, the framers of our Constitution must have recognized the nature of con#ersations between individuals and the significance of man#s spiritual nature, of his feelings and of his intellect. They must have 0nown that part of the pleasures and satisfactions of life are to be found in the unaudited, and free e$change of communication between individuals . free from every unAustifiable intrusion by whatever means. 1* &n (aanan #s. Interme"iate A ellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone e$tension for the purpose

of overhearing a private conversation without authorization did not violate R.A. :;** because a telephone e$tension devise was neither among those %device,s- or arrangement,s-% enumerated therein, 19 following the principle that %penal statutes must be construed strictly in favor of the accused.% 2+ The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. :;** suffer from no ambiguity, and the statute itself e$plicitly mentions the unauthorized %recording% of private communications with the use of tape5recorders as among the acts punishable. 71!R!?6R!, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby D!4&!D. The decision appealed from is A??&R/!D. Costs against petitioner. S6 6RD!R!D.

G.R. No. 1+*383. "ebr,$r- 2+, 199)..

CECILIA Z L E!A, petitioner, vs. CO R! O" A##EALS $%& AL"REDO MAR!IN, respondents. DECISION MENDOZA, J.: This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of /anila ,Jranch K- which ordered petitioner to return documents and papers ta0en by her from private respondentLs clinic without the latterLs 0nowledge and consent. The facts are as follows+ 'etitioner Cecilia Mulueta is the wife of private respondent Alfredo /artin. 6n /arch ;(, )<=;, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondentLs secretary, forcibly opened the drawers and cabinet in her husbandLs clinic and too0 )IN documents consisting of private correspondence between Dr. /artin and his alleged paramours, greetings cards, cancelled chec0s, diaries, Dr. /artinLs passport, and

photographs. The documents and papers were seized for use in evidence in a case for legal separation and for dis>ualification from the practice of medicine which petitioner had filed against her husband. Dr. /artin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was filed with the Regional Trial Court of /anila, Jranch K, which, after trial, rendered Audgment for private respondent, Dr. Alfredo /artin, declaring him Othe capitalPe$clusive owner of the properties described in paragraph B of plaintiffLs Complaint or those further described in the /otion to Return and SuppressQ and ordering Cecilia Mulueta and any person acting in her behalf to immediately return the properties to Dr. /artin and to pay him 'I,***.**, as nominal damagesC 'I,***.**, as moral damages and attorneyLs feesC and to pay the costs of the suit. The writ of preliminary inAunction earlier issued was made final and petitioner Cecilia Mulueta and her attorneys and representatives were enAoined from Ousing or submittingPadmitting as evidenceQ the documents and papers in >uestion. 6n appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. 1ence this petition. There is no >uestion that the documents and papers in >uestion belong to private respondent, Dr. Alfredo /artin, and that they were ta0en by his wife, the herein petitioner, without his 0nowledge and consent. ?or that reason, the trial court declared the documents and papers to be properties of private respondent, ordered petitioner to return them to private respondent and enAoined her from using them in evidence. &n appealing from the decision of the Court of Appeals affirming the trial courtLs decision, petitionerLs only ground is that in Al%re"o Martin #) Al%onso Feli*, +r),) this Court ruled that the documents and papers ,mar0ed as Anne$es A5i to D5N of respondentLs comment in that case- were admissible in evidence and, therefore, their use by petitionerLs attorney, Alfonso ?eli$, Dr., did not constitute malpractice or gross misconduct. ?or this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing private respondentLs complaint. 'etitionerLs contention has no merit. The case against Atty. ?eli$, Dr. was for disbarment. Among other things, private respondent, Dr. Alfredo /artin, as complainant in that case, charged that in using the documents in evidence, Atty. ?eli$, Dr. committed malpractice or gross misconduct because of the inAunctive order of the trial court. &n dismissing the complaint against Atty. ?eli$, Dr., this Court too0 note of the following defense of Atty. ?eli$, Dr. which it found to be Oimpressed with merit+Q; 6n the alleged malpractice or gross misconduct of respondent EAlfonso ?eli$, Dr.F, he maintains that+ $$$ $$$ $$$

September (, )<=B, however having appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court. 1ence, during the enforceability of this CourtLs order, respondentLs re>uest for petitioner to admit the genuineness and authenticity of the subAect anne$es cannot be loo0ed upon as malpractice. 4otably, petitioner Dr. /artin finally admitted the truth and authenticity of the >uestioned anne$es. At that point in time, would it have been malpractice for respondent to use petitionerLs admission as evidence against him in the legal separation case pending in the Regional Trial Court of /a0ati8 Respondent submits it is5 not malpractice. Significantly, petitionerLs admission was done not thru his counsel but by Dr. /artin himself under oath. Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. 'etitioner became bound by his admission. ?or Cecilia to avail herself of her husbandLs admission and use the same in her action for legal separation cannot be treated as malpractice. Thus, the ac>uittal of Atty. ?eli$, Dr. in the administrative case amounts to no more than a declaration that his use of the documents and papers for the purpose of securing Dr. /artinLs admission as to their genuiness and authenticity did not constitute a violation of the inAunctive order of the trial court. Jy no means does the decision in that case establish the admissibility of the documents and papers in >uestion. &t cannot be overemphasized that if Atty. ?eli$, Dr. was ac>uitted of the charge of violating the writ of preliminary inAunction issued by the trial court, it was only because, at the time he used the documents and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TR6 issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial courtLs order was dismissed and, therefore, the prohibition against the further use of the documents and papers became effective again. &ndeed the documents and papers in >uestion are inadmissible in evidence. The constitutional inAunction declaring Othe privacy of communication and correspondence Eto beF inviolableQB is no less applicable simply because it is the wife ,who thin0s herself aggrieved by her husbandLs infidelity- who is the party against whom the constitutional provision is to be enforced. The only e$ception to the prohibition in the Constitution is if there is a Olawful order Efrom aF court or when public safety or order re>uires otherwise, as prescribed by law.Q : Any violation of this provision renders the evidence obtained inadmissible Ofor any purpose in any proceeding.QI The intimacies between husband and wife do not Austify any one of them in brea0ing the drawers and cabinets of the other and in ransac0ing them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed hisPher integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her.

:. 7hen respondent refiled CeciliaLs case for legal separation before the 'asig Regional Trial Court, there was admittedly an order of the /anila Regional Trial Court prohibiting Cecilia from using the documents Anne$ OA5& to D5N.Q 6n

The law insures absolute freedom of communication between the spouses by ma0ing it privileged. 4either husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. ( 4either may be e$amined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified e$ceptions.N Jut one thing is freedom of communicationC >uite another is a compulsion for each one to share what one 0nows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. /HERE"ORE, the petition for review is D!4&!D for lac0 of merit. SO ORDERED.

G.R. No. 8238+ Apr01 29, 1988 A2ER #ROD C!IONS #!2. L!D. $%& M3ELRO2 4 M3ELRO2 "ILM #ROD C!IONS, petitioners, vs. HON.IGNACIO M. CA# LONG $%& 5 AN #ONCE ENRILE, respondents. G.R. No. 82398 Apr01 29, 1988 HAL MCELRO2 petitioner, vs. HON. IGNACIO M. CA# LONG, 0% 607 3$p$30t- $7 #re70&0%8 5,&8e o9 t6e Re80o%$1 !r0$1 Co,rt o9 M$:$t0, Br$%36 13( $%& 5 AN #ONCE ENRILE, respondents.

"ELICIANO, J.: 'etitioner 1al /c!lroy an Australian film ma0er, and his movie production company, 'etitioner Ayer 'roductions pty 9td. ,Ayer 'roductions-, 1 envisioned, sometime in )<=N, the for commercial viewing and for 'hilippine and international release, the histolic peaceful struggle of the ?ilipinos at !DSA ,!pifanio de los Santos Avenue-. 'etitioners discussed this 'roAect with local movie producer 9ope @. Duban who suggested th they consult with the appropriate government agencies and also with "eneral ?idel @. Ramos and Senator Duan 'once !nrile, who had played maAor roles in the events proposed to be filmed. The proposed motion picture entitled %The ?our Day Revolution% was endorsed by the /ovie Television Review and Classification Joard as wel as the other government agencies consulted. "eneral ?idel Ramos also signified his approval of the intended film production. &n a letter dated )( December )<=N, petitioner 1al /c!lroy informed private respondent Duan 'once !nrile about the proAected motion picture enclosing a synopsis of it, the full te$t of which is set out below+ The ?our Day Revolution is a si$ hour mini5series about 'eople 'ower.a uni>ue event in modern history that5made possible the 'eaceful revolution in the 'hilippines in )<=(. ?aced with the tas0 of dramatising these rer0ble events, screenwriter David 7illiamson and history 'rof Al /cCoy have chosen a %docu5drama% style and created EfourF fictitious characters to trace the revolution from the death of Senator A>uino, to the ?eb revolution and the fleeing of /arcos from the country. These character stories have been woven through the real events to help our huge international audience understand this ordinary period in?ilipino history. ?irst, there#s Tony 6#4eil, an American television Aournalist wor0ing for maAor networ0. Tony reflects the average American attitude to the 'hihppinence .once a colony, now the home of crucially important military bases. Although Tony is aware of the corruption and of /arcos# megalomania, for him, there appears to be no alternative to /arcos e$cept the Communists. 4e$t, Angie ?o$ a fiery Australian photo5Aournalist. A #new girl in town,# she is >uic0ly caught up in the events as it becomes dear that the time has come for a change. Through Angle and her relationship with one of the Reform Army /ovement Colonels ,a

fictitious character-, we follow the developing discontent in the armed forces. Their disli0e for "eneral @er, their strong loyalty to Defense /inister !nrile, and ultimately their defection from /arcos. The fourth fictitious character is Jen Jalano, a middle5aged editor of a /anila newspaper who despises the /arcos regime and is a supporter an promoter of Cory A>uino. Jen has two daughters, Cehea left wing lawyer who is a secret member of the 4ew 'eople#s Army, and !va55a 5'.R. girl, politically moderate and very much in love with Tony. 2ltimately, she must choose between her love and the revolution. Through the interviews and e$periences of these central characters, we show the comple$ nature of ?ilipino society, and thintertwining series of events and characters that triggered these remar0able changes. Through them also, we meet all of the principal characters and e$perience directly dramatic recreation of the revolution. The story incorporates actual documentary footage filmed during the period which we hope will capture the uni>ue atmosphere and forces that combined to overthrow 'resident /arcos. David 7illiamson is Australia#s leading playwright with some ): hugely successful plays to his credit,Don#s 'arty,# #The Club,# Travelling 4orth- and )) feature films ,The Hear of 9iving Dangerously,# "allipoli,# #'har 9ap#-. 'rofessor /cCoy ,2niversity of 4ew South 7ales- is an American historian with a deep understanding of the 'hilippines, who has wor0ed on the research for this proAect for some )= months. Together with Davi 7ilhamgon they have developed a script we believe accurately depicts the comple$ issues and events that occurred during th period . The si$ hour series is a /c!lroy and /c!lroy co5production with 1ome Jo$ 6ffice in American, the Australian Jroadcast Corporation in Australia and Menith 'roductions in the 2nited 3ingdom The proposed motion picture would be essentially a re5enact. ment of the events that made possible the !DSA revolutionC it is designed to be viewed in a si$5hour mini5 series television play, presented in a %docu5drama% style, creating four ,:- fictional characters interwoven with real events, and utilizing actual documentary footage as bac0ground.

6n ;) December )<=N, private respondent !nrile replied that %EheF would not and will not approve of the use, appropriation, reproduction andPor e$hibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial e$ploitation% and further advised petitioners that #in the production, airing, showing, distribution or e$hibition of said or similar film, no reference whatsoever ,whether written, verbal or visual- should not be made to EhimF or any member of his family, much less to any matter purely personal to them. &t appears that petitioners acceded to this demand and the name of private respondent !nrile was deleted from the movie script, and petitioners proceeded to film the proAected motion picture. 6n ;B ?ebruary )<==, private respondent filed a Complaint with application for Temporary Restraining 6rder and 7ilt of 'retion with the Regional Trial Court of /a0ati, doc0eted as Civil Case 4o. ==5)I) in Jranch )B: thereof, see0ing to enAoin petitioners from producing the movie %The ?our Day Revolution%. The complaint alleged that petitioners# production of the mini5series without private respondent#s consent and over his obAection, constitutes an obvious violation of his right of privacy. 6n ;: ?ebruary )<==, the trial court issued e*- arte a Temporary Restraining 6rder and set for hearing the application for preliminary inAunction. 6n < /arch )<==, 1al /c!lroy flied a /otion to Dismiss with 6pposition to the 'etition for 'reliminary &nAunction contending that the mini5series fim would not involve the private life of Duan 'once !nrile nor that of his family and that a preliminary inAunction would amount to a prior restraint on their right of free e$pression. 'etitioner Ayer 'roductions also filed its own /otion to Dismiss alleging lac0 of cause of action as the mini5series had not yet been completed. &n an 6rder dated )( /arch )<==, respondent court issued a writ of 'reliminary &nAunction against the petitioners, the dispositive portion of which reads thus+ 71!R!?6R!, let a writ of preliminary inAunction be issued, ordering defendants, and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew as well as all persons and entities acting on defendants# behalf, to cease an" "esist %rom ro"ucing an" %ilming the mini-series entitle" ,The Four -a& Re#olution. an" %rom making an& re%erence whatsoe#er to lainti%% or his %amil& an" %rom creating an& %ictitious character in lieu o% lainti%% which ne#ertheless is !ase" on, or !ears rent su!stantial or marke" resem!lance or similarit& to, or is otherwise I"enti%ia!le with, lainti%% in the production and any similar film or photoplay, until further orders from this Court, upon plaintiff#s filing of a bond in the amount of ' ;,***,***.**, to answer for whatever damages
2

defendants may suffer by reason of the inAunction if the Court should finally decide that plaintiff was not entitled thereto. $$$ $$$ $$$ ,!mphasis supplied6n ;; /arch )<==, petitioner Ayer 'roductions came to this Court by a 'etition for certiorari dated ;) /arch )<== with an urgent prayer for 'reliminary &nAunction or Restraining 6rder, which petition was doc0eted as ".R. 4o. 95=;B=*. A day later, or on ;B /arch )<==, petitiioner 1al /c!lroy also filed separate 'etition for certiorari with 2rgent 'rayer for a Restraining 6rder or 'reliminary &nAunction, dated ;; /arch )<==, doc0eted as ".R. 4o. 95=;B<=. Jy a Resolution dated ;: /arch )<==, the petitions were consolidated and private respondent was re>uired to file a consolidated Answer. ?urther, in the same Resolution, the Court granted a Temporary Restraining 6rder partially enAoining the implementation of the respondent Dudge#s 6rder of )( /arch )<== and the 7rit of 'reliminary &nAunction issued therein, and allowing the petitioners to resume producing and filming those portions of the proAected mini5series which do not ma0e any reference to private respondent or his family or to any fictitious character based on or respondent. 'rivate respondent seasonably filed his Consolidated Answer on ( April )<== invo0ing in the main a right of privacy. & The constitutional and legal issues raised by the present 'etitions are sharply drawn. 'etitioners# claim that in producing and %The ?our Day Revolution,% they are e$ercising their freedom of speech and of e$pression protected under our Constitution. 'rivate respondent, upon the other hand, asserts a right of privacy and claims that the production and filming of the proAected mini5series would constitute an unlawful intrusion into his privacy which he is entitled to enAoy. Considering first petitioners# claim to freedom of speech and of e$pression the Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to e$hibit such motion pictures in theaters or to diffuse them through television. &n our day and age, motion pictures are a univesally utilized vehicle of communication and medium 6f e$pression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, education and entertainment. &n (on$ales #) /atig!ak,3 former Chief Dustice ?ernando, spea0ing for the Court, e$plained+

). /otion pictures are important both as a medium for the communication of &deas and the e$pression of the artistic impulse. Their effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is considerable. 4or as pointed out in Burst&n #) 0ilson ,B:B 2S :<I E)<:;)- is the &mportance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform# ,I!i", I*)-. There is no clear dividing line between what involves 0nowledge and what affords pleasure. &f such a distinction were sustained, there is a diminution of the basic right to free e$pression. ... ( This freedom is available in our country both to locally5owned and to foreign5owned motion picture companies. ?urthermore the circumstance that the production of motion picture films is a commercial activity e$pected to yield monetary profit, is not a dis>ualification for availing of freedom of speech and of e$pression. &n our community as in many other countries, media facilities are owned either by the government or the private sector but the private sector5owned media facilities commonly re>uire to be sustained by being devoted in whole or in pailt to revenue producing activities. &ndeed, commercial media constitute the bul0 of such facilities available in our country and hence to e$clude commercially owned and operated media from the e$erciseof constitutionally protected om of speech and of e$pression can only result in the drastic contraction of such constitutional liberties in our country. The counter5balancing of private respondent is to a right of privacy. &t was demonstrated sometime ago by the then Dean &rene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 &t is left to case law, however, to mar0 out the precise scope and content of this right in differing types of particular situations. The right of privacy or %the right to be let alone,% ) li0e the right of free e$pression, is not an absolute right. A limited intrusion into a person#s privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of apublic character. *Succinctly put, the right of privacy cannot be invo0ed resist publication and dissemination of matters of public interest. 8 The interest sought to be protected by the right of privacy is the right to be free from unwarrante"publicity, from the wrong%ul publicizing of the private affairs and activities of an individual which are outsi"e the realm o% legitimate u!lic concern. 9 1agun$a" #) 2"a) "e (on$ales, 1+ on which private respondent relies heavily, recognized a right to privacy in a conte$t which included a claim to freedom of speech and of e$pression. 1agun$a" involved a suit fortion picture producer as licensee and the widow and family of the late /oises 'adilla as licensors. This agreement gave the licensee the right to produce a motion 'icture 'ortraying the life of /oises 'adilla, a mayoralty candidate of the 4acionalista 'arty for the /unicipality of /agallon, 4egros 6ccidental during the 4ovember )<I) elections

and for whose murder, "overnor Rafael 9acson, a member of the 9iberal 'arty then in power and his men were tried and convicted. 11 &n the Audgment of the lower court enforcing the licensing agreement against the licensee who had produced the motion picture and e$hibited it but refused to pay the stipulated royalties, the Court, through Dustice /elencio51errera, said+ 4either do we agree with petitioner#s subon that the 9icensing Agreement is null and void for lac0 of, or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the boo0 entitled %The /oises 'adilla Story,% that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased#s life and in that of his mother and the member of his family. As held in Schuyler v. Curtis, ,E)=<IF,):N 4H :B:,:; 4! B) 9RA ;=(.:< Am St Rep (N)-, #a privilege may be given the surviving relatives of a deperson to protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to preventa violation of their own rights in the character and memory of the deceased.# 'etitioners averment that private respondent did not have any property right over the life of /oises 'adilla since the latter was a public figure, is neither well ta0en. Jeing a public figure ipso facto does not automatically destroy in toto a person#s right to privacy. The right to invade a person#s privacy to disseminate public information does not e$tend to a fictional or novelized representation of a person, no matter how public a he or she may be ,"arner v. Triangle 'ublications, DC4H <N ?. Supp., S2 I:< E)<I)F-. &n the case at bar, while it is true that petitioner e$erted efforts to present a true5to5life Story 6f /oises 'adilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality. 12 &n 1agun$a", the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of e$pression and to privacy. 9agunzad the licensee in effect claimed, in the name of freedom of speech and e$pression, a right to produce a motion picture biography at least partly %fictionalized% of /oises 'adilla without the consent of and without paying pre5agreed royalties to the widow and family of 'adilla. &n reAecting the licensee#s claim, the Court said+ 9astly, neither do we find merit in petitioners contention that the 9icensing Agreement infringes on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to e$press his thoughts in film on the public life of /oises 'adilla without prior restraint.The right

freedom of e$pression, indeed, occupies a preferred position in the %hierarchy of civil liberties% ,'hilippine Jlooming /ills !mployees 6rganization v. 'hilippine Jlooming /ills Co., &nc., I) SCRA )<) E)<(BF-. &t is not, however, without limitations. As held in "onzales v. Commission on !lections, ;N SCRA =BI, =I= E)<(*F+ $$$ $$$ $$$ The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the %balancing of interest test% ,Chief Dustice !nri>ue /. ?ernando on the Jill of Rights, )<N* ed. p. N<-. The principle %re>uires a court to ta0e conscious and detailed consideration of the interplay of interests observable in given situation or type of situation% ,Separation 6pinion of the late Chief Dustice Castro in "onzales v. Commission on !lections, su ra, p. =<<-. In the case at !ar, the interests o!ser#a!le are the right to ri#ac& asserte" !& res on"ent an" the right o% %ree"om o% e* ression in#oke" !& etitioner. ta0ing into account the interplay of those interests, we hold thatun"er the articular circumstances resente", an" consi"ering the o!ligations assume" in the 1icensing Agreement entere" into !& etitioner, the #ali"it& o% such agreement will ha#e to !e u hel" articularl& !ecause the limits o% %ree"om o% e* ression are reache" when e* ression touches u on matters o% essentiall& ri#ate concern). 13 7hether the %balancing of interests test% or the clear and present danger test% be applied in respect of the instant 'etitions, the Court believes that a different conclusion must here be reached+ The production and filming by petitioners of the proAected motion picture %The ?our Day Revolution% does not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent#s %right of privacy.% ). &t may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent Dudge upon the e$ercise of speech and of e$pression by petitioners. The respondent Dudge has restrained petitioners from filming and producing the entire proposed motion picture. &t is important to note that in 9agunzad, there was no prior restrain of any 0ind imposed upon the movie producer who in fact completed and e$hibited the film biography of /oises 'adilla. Jecause of the speech and of e$pression, a weighty presumption of invalidity vitiates. 1( The invalidity of a measure of prior restraint doesnot, of course,

mean that no subse>uent liability may lawfully be imposed upon a person claiming to e$ercise such constitutional freedoms. The respondent Dudge should have stayed his hand, instead of issuing an e$5parte Temporary Restraining 6rder one day after filing of a complaint by the private respondent and issuing a 'reliminary &nAunction twenty ,;*- days laterC for the proAected motion picture was as yet uncompleted and hence not e$hibited to any audience. 4either private respondent nor the respondent trial Dudge 0new what the completed film would precisely loo0 li0e. There was, in other words, no %clear and present danger% of any violation of any right to privacy that private respondent could lawfully assert. ;. The subAect matter of %The ?our Day Revolution% relates to the non5bloody change of government that too0 place at !pifanio de los Santos Avenue in ?ebruary )<=(, and the trian of events which led up to that denouement. Clearly, such subAect matter is one of public interest and concern. &ndeed, it is, petitioners# argue, of international interest. The subAect thus relates to a highly critical stage in the history of this countryand as such, must be regarded as having passed into the public domain and as an appropriate subAect for speech and e$pression and coverage by any form of mass media. The subAect mater, as set out in the synopsis provided by the petitioners and >uoted above, does not relate to the individual life and certainly not to the private life of private respondent 'once !nrile. 2nli0e in 9agunzad, which concerned the life story of /oises 'adilla necessarily including at least his immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent 'once !nrile. %The ?our Day Revolution% is not principally about, nor is it focused upon, the man Duan 'once !nrile# but it is compelled, if it is to be historical, to refer to the role played by Duan 'once !nrile in the precipitating and the constituent events of the change of government in ?ebruary )<=(. B. The e$tent of the instrusion upon the life of private respondent Duan 'once !nrile that would be entailed by the production and e$hibition of %The ?our Day Revolution% would, therefore, be limited in character. The e$tent of that intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to 0eep that film a truthful historical account. 'rivate respondent does not claim that petitioners threatened to depict in %The ?our Day Revolution% any part of the private life of private respondent or that of any member of his family. :. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were ta0ing place, private respondent was what 'rofs. 'rosser and 3eeton have referred to as a %public figure+% A u!lic %igure has !een "e%ine" as a erson who, !& his accom lishments, %ame, or mo"e o% li#ing, or !& a"o ting a ro%ession or calling which gi#es the u!lic a legitimate interest in his "oings, his a%%airs, an" his character, has !ecome a , u!lic

ersonage), 3e is, in other wor"s, a cele!rit&) O!#iousl& to !e inclu"e" in this categor& are those who ha#e achie#e" some "egree o% re utation !& a earing !e%ore the u!lic, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It inclu"es u!lic o%%icers, famous inventors and e$plorers, war heroes an" e#en or"inar& sol"iers, an infant prodigy, and no less a personage than the "rand !$alted Ruler of a lodge. It inclu"es, in short, an&one who has arri#e" at a osition where u!lic attention is %ocuse" u on him as a erson) Such u!lic %igures were hel" to ha#e lost, to some e*tent at least, their tight to ri#ac&) Three reasons were given, more or less indiscrimately, in the decisions% that they had sought publicity and consented to it, and so could not complaint when they received itC that their ersonalities an" their a%%airs has alrea"& u!lic, an" coul" no longer !e regar"e" as their own ri#ate !usiness4 an" that the ress ha" a ri#ilege, un"er the Constitution, to in%orm the u!lic a!out those who ha#e !ecome legitimate matters o% u!lic interest) 6n one or another of these grounds, and sometimes all, it was held that there was no lia!ilit& when the& were gi#en a""itional u!licit&, as to matters legitimatel& within the sco e o% the u!lic interest the& ha" arouse") The ri#ilege o% gi#ing u!licit& to news, an" other matters o% u!lic interest, was hel" to arise out o% the "esire an" the right o% the u!lic to know what is going on in the worl", an" the %ree"om o% the ress an" other agencies o% in%ormation to tell it) %4ews% includes all events and items of information which are out of the ordinary hum5drum routine, and which have #that indefinable >uality of information which arouses public attention.# To a very great e$tent the press, with its e$perience or instinct as to what its readers will want, has succeeded in ma0ing its own definination of news, as a glance at any morning newspaper will sufficiently indicate. &t includes homicide and othe crimes, arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal. The ri#ilege o% enlightening the u!lic was not, howe#er, limite", to the "issemination o% news in the scene o% current e#ents) It e*ten"e" also to in%ormation or e"ucation, or e#en entertainment an" amusement, !& !ooks, articles, ictures, %ilms an" !roa"casts

concerning interesting hases o% human acti#it& in general, as well as the re ro"uction o% the u!lic scene in newsreels an" tra#elogues) &n determining where to draw the line, the courts were invited to e$ercise a species of censorship over what the public may be permitted to readC and they were understandably liberal in allowing the benefit of the doubt. 15 'rivate respondent is a %public figure% precisely because, inter alia, of his participation as a principal actor in the culminating events of the change of government in ?ebruary )<=(. Jecause his participation therein was maAor in character, a film reenactment of the peaceful revolution that fails to ma0e reference to the role played by private respondent would be grossly unhistorical. The right of privacy of a %public figure% is necessarily narrower than that of an ordinary citizen. 'rivate respondent has not retired into the seclusion of simple private citizenship. he continues to be a %public figure.% After a successful political campaign during which his participation in the !DSA Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the 'hilippines. I. The line of e>uilibrium in the specific conte$t of the instant case between the constitutional freedom of speech and of e$pression and the right of privacy, may be mar0ed out in terms of a re>uirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. There must, in other words, be no 0nowing or rec0less disregard of truth in depicting the participation of private respondent in the !DSA Revolution. )( There must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. )N The proposed motion picture should not enter into what /me. Dustice /elencio51errera in 9agunzad referred to as %matters of essentially private concern.% )= To the e$tent that %The ?our Day Revolution% limits itself in portraying the participation of private respondent in the !DSA Revolution to those events which are directly and reasonably related to the u!lic %acts of the !DSA Revolution, the intrusion into private respondent#s privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent. && &n a /anifestation dated B* /arch )<==, petitioner 1al /c!lroy informed this Court that a Temporary Restraining 6rder dated ;I /arch )<==, was issued by Dudge Teofilo "uadiz of the Regional Trial Court of /a0ati, Jranch ):N, in Civil Case 4o. ==5:)B, entitled %"regorio J. 1onasan vs. Ayer 'roductions 'ty. 9td., /c!lroy ?ilm 'roductions, 1al /c!lroy, 9ope Duban and '/' /otion for 'ictures 'roduction% enAoining him and his production company from further filimg any scene of the proAected mini5series film. 'etitioner alleged that 1onasan#s complaint was a %scissors and paste% pleading, cut out straight grom the complaint of private

respondent 'once !nrile in Civil Case 4o. ==5)I). 'etitioner Ayer 'roductions, in a separate /anifestation dated : April )<==, brought to the attention of the Court the same information given by petitoner 1al /c!lroy, reiterating that the complaint of "regorio J. 1onasan was substantially identical to that filed by private respondent herein and stating that in refusing to Aoin 1onasan in Civil Case 4o. ==5)I), counsel for private respondent, with whom counsel for "regorio 1onasan are apparently associated, deliberately engaged in %forum shopping.% 'rivate respondent filed a Counter5/anifestation on )B April )<== stating that the %slight similarity% between private respondent#s complaint and that on 1onasan in the construction of their legal basis of the right to privacy as a component of the cause of action is understandable considering that court pleadings are public recordsC that private respondent#s cause of action for invasion of privacy is separate and distinct from that of 1onasan#s although they arose from the same tortious act of petitioners# that the rule on permissive Aoinder of parties is not mandatory and that, the cited cases on %forum shopping% were not in point because the parties here and those in Civil Case 4o. ==5:)B are not identical. ?or reasons that by now have become clear, it is not necessary for the Court to deal with the >uestion of whether or not the lawyers of private respondent 'once !nrile have engaged in %forum shopping.% &t is, however, important to dispose to the complaint filed by former Colonel 1onasan who, having refused to subAect himself to the legal processes of the Republic and having become once again in fugitive from Austice, must be deemed to have forfeited any right the might have had to protect his privacy through court processes. 71!R!?6R!, a- the 'etitions for Certiorari are "RA4T!D D2! C62RS!, and the 6rder dated )( /arch )<== of respondent trial court granting a 7rit of 'reliminary &nAunction is hereby S!T AS&D!. The limited Temporary Restraining 6rder granted by this Court on ;: /arch )<== is hereby /6D&?&!D by enAoining un>ualifiedly the implementation of respondent Dudge#s 6rder of )( /arch )<== and made '!R/A4!4T, and b- Treating the /anifestations of petitioners dated B* /arch )<== and : April )<== as separate 'etitions for Certiorari with 'rayer for 'reliminary &nAunction or Restraining 6rder, the Court, in the e$ercise of its plenary and supervisory Aurisdiction, hereby R! 2&R!S Dudge Teofilo "uadiz of the Regional Trial Court of /a0ati, Jranch ):N, forthwith to D&S/&SS Civil Case 4o. ==5:)B and accordingly to S!T AS&D! and D&SS69@! his Temporary Restraining 6rder dated ;I /arch )<== and any 'reliminary &nAunction that may have been issued by him. 4o pronouncement as to costs.

S6 6RD!R!D.

G.R. No. L;(()(+ O3tober 12, 19*) #ABLO C. SANIDAD $%& #ABLI!O <. SANIDAD, petitioner, vs. HONORABLE COMMISSION ON ELEC!IONS $%& HONORABLE NA!IONAL !REAS RER, respondents. G.R. No. L;(()8(. O3tober 12,19*) <ICEN!E M. vs. COMMISSION ELEC!IONS, respondent. G.R. No. L;((*1(. O3tober 12,19*) G ZMAN, petitioner,

RA L M. GONZALES, RA L !. GONZALES, 5R., $%& AL"REDO SALA#AN!AN, petitioners, vs. HONORABLE COMMISSION ON SELEC!IONS $%& HONORABLE NA!IONAL !REAS RER, respondents. MAR!IN, J,: The capital >uestion raised in these prohibition suits with preliminary inAunction relates to the power of the incumbent 'resident of the 'hilippines to propose amendments to the present Constitution in the absence of the interim 4ational Assembly which has not been convened. 6n September ;, )<N(, 'resident ?erdinand !. /arcos issued 'residential Decree 4o. <<) calling for a national referendum on 6ctober )(, )<N( for the Citizens Assemblies ,%barangays%- to resolve, among other things, the issues of martial law, the & . assembly, its replacement, the powers of such replacement, the period of its e$istence, the length of the period for tile e$ercise by the 'resident of his present powers.1 Twenty days after or on September ;;, )<N(, the 'resident issued another related decree, 'residential Decree 4o. )*B), amending the previous 'residential Decree 4o. <<), by declaring the provisions of presidential Decree 4o. ;;< providing for the manner of voting and canvass of votes in %barangays% ,Citizens Assembliesapplicable to the national referendum5plebiscite of 6ctober )(, )<N(. uite relevantly, 'residential Decree 4o. )*B) repealed Section :, of 'residential Decree 4o. <<), the full te$t of which ,Section :- is >uoted in the footnote below. 2 6n the same date of September ;;, )<N(, the 'resident issued 'residential Decree 4o. )*BB, stating the >uestions to be submitted to the people in the referendum5 plebiscite on 6ctober )(, )<N(. The Decree recites in its %whereas% clauses that the people#s continued opposition to the convening of the 4ational Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a legislative body, which will be submitted directly to the people in the referendum5plebiscite of 6ctober )(. The >uestions as0, to wit+ ,)- Do you want martial law to be continued8 ,;- 7hether or not you want martial law to be continued, do you approve the following amendments to the Constitution8 ?or the purpose of the second >uestion, the referendum shall have the effect of a plebiscite within the contemplation of Section ; of Article K@& of the Constitution.

'R6'6S!D A/!4D/!4TS+ ). There shall be, in lieu of the interim 4ational Assembly, an interim Jatasang 'ambansa. /embers of the interim Jatasang 'ambansa which shall not be more than );*, unless otherwise provided by law, shall include the incumbent 'resident of the 'hilippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent 'resident from the members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be determined by law. The number of representatives from each region or sector and the, manner of their election shall be prescribed and regulated by law. ;. The interim Jatasang 'ambansa shall have the same powers and its members shall have the same functions, responsibilities, rights, privileges, and dis>ualifications as the interim 4ational Assembly and the regular 4ational Assembly and the members thereof. 1owever, it shall not e$ercise the power provided in Article @&&&, Section ):,l- of the Constitution. B. The incumbent 'resident of the 'hilippines shall, within B* days from the election and selection of the members, convene the interim Jatasang 'ambansa and preside over its sessions until the Spea0er shall have been elected. The incumbent 'resident of the 'hilippines shall be the 'rime /inister and he shall continue to e$ercise all his powers even after the interim Jatasang 'ambansa is organized and ready to discharge its functions and li0ewise he shall continue to e$ercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and the powers vested in the 'resident and the 'rime /inister under this Constitution. :. The 'resident ,'rime /inister- and his Cabinet shall e$ercise all the powers and functions, and discharge the responsibilities of the regular 'resident ,'rime /inisterand his Cabinet, and shall be subAect only to such dis>ualifications as the 'resident ,'rime /inister- may prescribe. The 'resident ,'rime /inister- if he so desires may appoint a Deputy 'rime /inister or as many Deputy 'rime /inisters as he may deem necessary. I. The incumbent 'resident shall continue to e$ercise legislative powers until martial law shall have been lifted. (. 7henever in the Audgment of the 'resident ,'rime /inister-, there e$ists a grave emergency or a threat or imminence thereof, or whenever the interim Jatasang 'ambansa or the regular 4ational Assembly fails or is unable to act ade>uately on any matter for any reason that in his Audgment re>uires immediate action, he may, in order to meet the e$igency, issue the necessary decrees, orders or letters of instructions, which shall form part of the law of the land.

N. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and composition may be altered by law. Referenda conducted thru the barangays and under the Supervision of the Commission on !lections may be called at any time the government deems it necessary to ascertain the will of the people regarding any important matter whether of national or local interest. =. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force and effect. <. These amendments shall ta0e effect after the incumbent 'resident shall have proclaimed that they have been ratified by & maAority of the votes cast in the referendum5plebiscite.% The Commission on !lections was vested with the e$clusive supervision and control of the 6ctober )<N( 4ational Referendum5'lebiscite. 6n September ;N, )<N(, 'AJ96 C. SA4&DAD and 'AJ9&T6 @. SA4&DAD, father and son, commenced 95::(:* for 'rohibition with 'reliminary &nAunction see0ing to enAoin the Commission on !lections from holding and conducting the Referendum 'lebiscite on 6ctober )(C to declare without force and effect 'residential Decree 4os. <<) and )*BB, insofar as they propose amendments to the Constitution, as well as 'residential Decree 4o. )*B), insofar as it directs the Commission on !lections to supervise, control, hold, and conduct the Referendum5'lebiscite scheduled on 6ctober )(, )<N(. 'etitioners contend that under the )<BI and )<NB Constitutions there is no grant to the incumbent 'resident to e$ercise the constituent power to propose amendments to the new Constitution. As a conse>uence, the Referendum5'lebiscite on 6ctober )( has no constitutional or legal basis. 6n 6ctober I, )<N(, the Solicitor "eneral filed the comment for respondent Commission on !lections, The Solicitor "eneral principally maintains that petitioners have no standing to sueC the issue raised is political in nature, beyond Audicial cognizance of this CourtC at this state of the transition period, only the incumbent 'resident has the authority to e$ercise constituent powerC the referendum5 plebiscite is a step towards normalization. 6n September B*, )<N(, another action for 'rohibition with 'reliminary &nAunction, doc0eted as 95::(=:, was instituted by @&C!4T! /. "2M/A4, a delegate to the )<N) Constitutional Convention, asserting that the power to propose amendments to, or revision of the Constitution during the transition period is e$pressly conferred on the interim 4ational Assembly under Section )(, Article K@&& of the Constitution.B

Still another petition for 'rohibition with 'reliminary &nAunction was filed on 6ctober I, )<N( by RA29 /. "64MA9!S, his son RA29, DR., and A9?R!D6 SA9A'A4TA4, doc0eted as 95 ::N):, to restrain the implementation of 'residential Decrees relative to the forthcoming Referendum5'lebiscite of 6ctober )(. These last petitioners argue that even granting him legislative powers under /artial 9aw, the incumbent 'resident cannot act as a constituent assembly to propose amendments to the ConstitutionC a referendum5plebiscite is untenable under the Constitutions of )<BI and )<NBC the submission of the proposed amendments in such a short period of time for deliberation renders the plebiscite a nullityC to lift /artial 9aw, the 'resident need not consult the people via referendumC and allowing )I5.year olds to vote would amount to an amendment of the Constitution, which confines the right of suffrage to those citizens of the 'hilippines )= years of age and above. 7e find the petitions in the three entitled cases to be devoid of merit. & +usticia!ilit& o% 5uestion raise") ). As a preliminary resolution, 7e rule that the petitioners in 95::(:* ,'ablo C. Sanidad and 'ablito @. Sanidad- possess locus stan"i to challenge the constitutional premise of 'residential Decree 4os. <<), )*B), and )*BB. &t is now an ancient rule that the valid source of a stature 'residential Decrees are of such nature5may be contested by one who will sustain a direct inAuries as a in result of its enforcement. At the instance of ta$payers, laws providing for the disbursement of public funds may be enAoined, upon the theory that the e$penditure of public funds by an officer of the State for the purpose of e$ecuting an unconstitutional act constitutes a misapplication of such funds. : The breadth of 'residential Decree 4o. <<) carries all appropriation of ?ive /illion 'esos for the effective implementation of its purposes. I 'residential Decree 4o. )*B) appropriates the sum of !ight /illion 'esos to carry out its provisions. ( The interest of the aforenamed petitioners as ta$payers in the lawful e$penditure of these amounts of public money sufficiently clothes them with that personality to litigate the validity of the Decrees appropriating said funds. /oreover, as regards ta$payer#s suits, this Court enAoys that open discretion to entertain the same or not. N ?or the present case, 7e deem it sound to e$ercise that discretion affirmatively so that the authority upon which the disputed Decrees are predicated may be in>uired into. ;. The Solicitor "eneral would consider the >uestion at bar as a pure political one, lying outside the domain of Audicial review. 7e disagree. The amending process both as to proposal and ratification, raises a Audicial >uestion . 8 This is especially true in cases where the power of the 'residency to initiate the of normally e$ercised

by the legislature, is seriously doubted. 2nder the terms of the )<NB Constitution, the power to propose amendments o the constitution resides in the interim 4ational Assembly in the period of transition ,See. )I, Transitory provisions-. After that period, and the regular 4ational Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular 4ational Assembly ,Sec. ), pars. ) and ; of Art. K@&, )<NB constitution-. The normal course has not been followed. Rather than calling the 4ational Assembly to constitute itself into a constituent assembly the incumbent 'resident undertoo0 the proposal of amendments and submitted the proposed amendments thru 'residential Decree )*BB to the people in a Referendum5'lebiscite on 6ctober )(. 2navoidably, the regularity regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing 'residential Decree 4os. <<), )*B), and )*BB, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a Austiciable one, within the competence of this Court to pass upon. Section ; ,;-, Article K of the new Constitution provides+ %All cases involving the constitutionality of a treaty, e$ecutive agreement, or law may shall be heard and decided by the Supreme Court en banc and no treaty, e$ecutive agreement, or law may be declared unconstitutional without the concurrence of at least ten /embers. ...% The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, li0e all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authorities to determine whether that power has been discharged within its limits. 'olitical >uestions are neatly associated with the wisdom, of the legality of a particular act. 7here the vorte$ of the controversy refers to the legality or validity of the contested act, that matter is definitely Austiciable or non5political. 7hat is in the heels of the Court is not the wisdom of the act of the incumbent 'resident in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. 7hether the amending process confers on the 'resident that power to propose amendments is therefore a downright Austiciable >uestion. Should the contrary be found, the actuation of the 'resident would merely be a !rutum %ulmen. &f the Constitution provides how it may be amended, the Audiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. 1+ 7e cannot accept the view of the Solicitor "eneral, in pursuing his theory of non5 Austiciability, that the >uestion of the 'resident#s authority to propose amendments and the regularity of the procedure adopted for submission of the proposal to the people ultimately lie in the Audgment of the A clear Descartes fallacy of #icious circle. &s it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending process when they ratified the present Constitution in )<NB8 7hether, therefore, the constitutional provision has been followed or not is the proper subAect of in>uiry, not by the people themselves of

course who e$ercise no power of Audicial but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this in>uiry must be done a prior not a posterior i.e., before the submission to and ratification by the people. &ndeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the Court#s maAority to treat such issue of 'residential role in the amending process as one of non5political impression. &n the 'lebiscite Cases, 11 the contention of the Solicitor "eneral that the issue on the legality of 'residential Decree 4o. NB %submitting to the 'ilipino people ,on Danuary )I, )<NB- for ratification or reAection the Constitution of the Republic of the 'hilippines proposed by the )<N) Constitutional Convention and appropriating fund s therefore %is a political one, was reAected and the Court unanimously considered the issue as Austiciable in nature. Subse>uently in the Ratification Cases 12 involving the issue of whether or not the validity of 'residential 'roclamation 4o. ))*;. announcing the Ratification by the ?ilipino people of the constitution proposed by the )<N) Constitutional Convention,% parta0es of the nature of a political >uestion, the affirmative stand of# the Solicitor "eneral was dismissed, the Court ruled that the >uestion raised is Austiciable. Chief Dustice Concepcion, e$pressing the maAority view, said, Thus, in the aforementioned plebiscite cases, 7e reAected the theory of the respondents therein that the >uestion whether 'residential Decree 4o. NB calling a plebiscite to be held on Danuary )I, )<NB, for the ratification or reAection of the proposed new Constitution, was valid or not, was not a proper subAect of Audicial in>uiry because, they claimed, it partoo0 of a political nature, and 7e unanimously declared that the issue was a Austiciable one. 7ith &dentical unanimity. 7e overruled the respondent#s contention in the )<N) habeas corpus cases, >uestioning 6ur authority to determine the constitutional sufficiency of the factual bases of the 'residential proclamation suspending the privilege of the writ of habeas corpus on August ;), )<N), despite the opposite view ta0en by this Court in Jarcelon vs. Ja0er and /ontenegro vs. Castaneda, insofar as it adhered to the former case, which view 7e, accordingly, abandoned and refused to apply. ?or the same reason, 7e did not apply and e$pressly modified, in "onzales vs. Commission on !lections, the political5>uestion theory adopted in /abanag vs. 9opez @ito.% 13 The return to Jarcelon vs. Ja0er and /abanag vs. 9opez @ito, urged by the Solicitor "eneral, was decisively refused by the Court. Chief Dustice Concepcion continued+ %The reasons adduced in support thereof are, however, substantially the same as those given in support on the political >uestion theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this Court and found by it to be legally unsound and constitutionally untenable. As a conse>uence. 6ur decisions in the aforementioned habeas corpus cases parta0es of the nature and effect of a stare decisis which gained added weight by its virtual reiteration.% && The amending process as laid out

in the new Constitution. ). Article K@& of the )<NB Constitution on Amendments ordains+ S!CT&64 ). ,)- Any amendment to, or revision of, this Constitution may be proposed by the 4ational Assembly upon a vote of three5fourths of all its /embers, or by a constitutional convention. ,;- The 4ational Assembly may, by a vote of two5 thirds of all its /embers, call a constitutional convention or, by a maAority vote of all its /embers, submit the >uestion of calling such a convention to the electorate in an election. S!CT&64 ;. Any amendment to, or revision of, this Constitution shall be valid when ratified by a maAority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision. &n the present period of transition, the interim 4ational Assembly instituted in the Transitory 'rovisions is conferred with that amending power. Section )I of the Transitory 'rovisions reads+ S!CT&64 )I. The interim 4ational Assembly, upon special call by the interim 'rime /inister, may, by a maAority vote of all its /embers, propose amendments to this Constitution. Such amendments shall ta0e effect when ratified in accordance with Article Si$teen hereof. There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy and period of transition. &n times of normally, the amending process may be initiated by the proposals of the ,)- regular 4ational Assembly upon a vote of three5fourths of all its membersC or ,;- by a Constitutional Convention called by a vote of two5thirds of all the /embers of the 4ational Assembly. 1owever the calling of a Constitutional Convention may be submitted to the electorate in an election voted upon by a maAority vote of all the members of the 4ational Assembly. &n times of transition, amendments may be proposed by a maAority vote of all the /embers of the 4ational Assembly upon special call by the interim 'rime /inister,. ;. This Court in A>uino v. C6/!9!C,% had already settled that the incumbent 'resident is vested with that prerogative of discretion as to when he shall initially convene the interim 4ational Assembly. Spea0ing for the maAority opinion in that case, Dustice /a0asiar said+ %The Constitutional Convention intended to leave to the 'resident the determination of the time when he shall initially convene the interim 4ational Assembly, consistent with the prevailing conditions of peace and order in the country.% Concurring, Dustice ?ernandez, himself a member of that Constitutional

Convention, revealed+ %,7-hen the Delegates to the Constitutional Convention voted on the Transitory 'rovisions, they were aware of the fact that under the same, the incumbent 'resident was given the discretion as to when he could convene the interim 4ational AssemblyC it was so stated plainly by the sponsor, Delegate HanezaC as a matter of fact, the proposal that it be convened #immediately#, made by Delegate 'imentel ,@- was reAected. The 'resident#s decision to defer the convening of the interim 4ational Assembly soon found support from the people themselves. &n the plebiscite of Danuary )*5)I, )<NB, at which the ratification of the )<NB Constitution was submitted, the people voted against the convening of the interim 4ational Assembly. &n the referendum of Duly ;:, )<NB, the Citizens Assemblies ,%bagangays%- reiterated their sovereign will to withhold the convening of the interim 4ational Assembly. Again, in the referendum of ?ebruary ;N, )<NI, the proposed >uestion of whether the interim 4ational Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates of the Constitutional Convention, who were deemed automatically members of the & interim 4ational Assembly, were against its inclusion since in that referendum of Danuary, )<NB, the people had already resolved against it. B. &n sensu strictiore, when the legislative arm of the state underta0es the proposals of amendment to a Constitution, that body is not in the usual function of lawma0ing. lt is not legislating when engaged in the amending process.)( Rather, it is e$ercising a peculiar power bestowed upon it by the fundamental charter itself. &n the 'hilippines, that power is provided for in Article K@& of the )<NB Constitution ,for the regular 4ational Assembly- or in Section )I of the Transitory 'rovisions ,for the 4ational Assembly-. 7hile ordinarily it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment amending of the Constitution is not legislative in character. &n political science a distinction is made between constitutional content of an organic character and that of a legislative character#. The distinction, however, is one of policy, not of law. 1* Such being the case, approval of the 'resident of any proposed amendment is a misnomer 18 The prerogative of the 'resident to approve or disapprove applies only to the ordinary cases of legislation. The 'resident has nothing to do with proposition or adoption of amendments to the Constitution. 19 &&& Concentration of 'owers in the 'resident during crisis government. ). &n general, the governmental powers in crisis government the 'hilippines is a crisis government today are more or less concentrated in the 'resident. 2+ According to Rossiter, %,t-he concentration of government power in a democracy faced by an

emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. &n most free states it has generally been regarded as imperative that the total power of the government be parceled out among three mutually independent branches e$ecutive, legislature, and Audiciary. &t is believed to be destructive of constitutionalism if any one branch should e$ercise any two or more types of power, and certainly a total disregard of the separation of powers is, as /adison wrote in the ?ederalist, 4o. :N, #the very definition of tyranny.# &n normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. Jy this same to0en, in abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf of the state and its independent e$istence. There are moments in the life of any government when all powers must wor0 together in unanimity of purpose and action, even if this means the temporary union of e$ecutive, legislative, and Audicial power in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and presidential systems of government. &n the former the all5important harmony of legislature and e$ecutive is ta0en for grantedC in the latter it is neither guaranteed nor to be to confidently e$pected. As a result, cabinet is more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis must not only be concentrated and e$pandedC it must also be freed from the normal system of constitutional and legal limitations. 21 Dohn 9oc0e, on the other hand, claims for the e$ecutive in its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of special e$igencies for which the legislative power had not provided. 22 The rationale behind such broad emergency powers of the !$ecutive is the release of the government from %the paralysis of constitutional restrains% so that the crisis may be ended and normal times restored. ;. The presidential e$ercise of legislative powers in time of martial law is now a conceded valid at. That sun clear authority of the 'resident is saddled on Section B ,pars. ) and ;- of the Transitory 'rovisions, thus+ 23 The incumbent 'resident of the 'hilippines shall initially convene the interim 4ational Assembly and shall preside over its sessions until the interim Spea0er shall have been elected. 1e shall continue to e$ercise his powers and prerogatives under the nineteen hundred and thirty5five Constitution and the powers vested in the 'resident and the 'rime /inister under this Constitution until the calls upon the interim 4ational Assembly to elect the interim 'resident and the interim 'rime /inister, who shall then e$ercise their respective powers vested by this Constitution. All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent 'resident shall be part of the law of the land, and shall remain valid, binding, and effective even after lifting of martial law or the ratification of this

Constitution, unless modified, revo0ed, or superseded by subse>uent proclamations, orders, decrees, instructions, or other acts of the incumbent 'resident, or unless e$pressly and e$plicitly modified or repealed by the regular 4ational Assembly. %&t is unthin0able,% said Dustice ?ernandez, a )<N) Constitutional Convention delegate, %that the Constitutional Convention, while giving to the 'resident the discretion when to call the interim 4ational Assembly to session, and 0nowing that it may not be convened soon, would create a vacuum in the e$ercise of legislative powers. 6therwise, with no one to e$ercise the lawma0ing powers, there would be paralyzation of the entire governmental machinery.% 2( 'araphrasing Rossiter, this is an e$tremely important factor in any constitutional dictatorship which e$tends over a period of time. The separation of e$ecutive and legislature ordained in the Constitution presents a distinct obstruction to efficient crisis government. The steady increase in e$ecutive power is not too much a cause for as the steady increase in the magnitude and comple$ity of the problems the 'resident has been called upon by the ?ilipino people to solve in their behalf, which involve rebellion, subversion, secession, recession, inflation, and economic crisis5a crisis greater than war. &n short, while conventional constitutional law Aust confines the 'resident#s power as Commander5in5Chief to the direction of the operation of the national forces, yet the facts of our political, social, and economic disturbances had convincingly shown that in meeting the same, indefinite power should be attributed to tile 'resident to ta0e emergency measures 25 &@ Authority of the incumbent 'resident t to propose amendments to the Constitution. ). As earlier pointed out, the power to legislate is constitutionally consigned to the interim 4ational Assembly during the transition period. 1owever, the initial convening of that Assembly is a matter fully addressed to the Audgment of the incumbent 'resident. And, in the e$ercise of that Audgment, the 'resident opted to defer convening of that body in utter recognition of the people#s preference. 9i0ewise, in the period of transition, the power to propose amendments to the Constitution lies in the interim 4ational Assembly upon special call by the 'resident ,See. )I of the Transitory 'rovisions-. Again, har0ing to the dictates of the sovereign will, the 'resident decided not to call the interim 4ational Assembly. 7ould it then be within the bounds of the Constitution and of law for the 'resident to assume that constituent power of the interim Assembly vis5a5vis his assumption of that body#s legislative functions8 The answer is yes. &f the 'resident has been legitimately discharging the legislative functions of the interim Assembly, there is no reason why

he cannot validly discharge the function of that Assembly to propose amendments to the Constitution, which is but adAunct, although peculiar, to its gross legislative power. This, of course, is not to say that the 'resident has converted his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the interim 4ational Assembly not convened and only the 'residency and the Supreme Court in operation, the urges of absolute necessity render it imperative upon the 'resident to act as agent for and in behalf of the people to propose amendments to the Constitution. 'arenthetically, by its very constitution, the Supreme Court possesses no capacity to propose amendments without constitutional infractions. ?or the 'resident to shy away from that actuality and decline to underta0e the amending process would leave the governmental machineries at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the obAective of a crisis government %to end the crisis and restore normal times.% &n these parlous times, that 'residential initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent assemblies or constitutional conventions, li0e the 'resident now, are mere agents of the people .2) ;. The 'resident#s action is not a unilateral move. As early as the referendums of Danuary )<NB and ?ebruary )<NI, the people had already reAected the calling of the interim 4ational Assembly. The 9upong Tagapagpaganap of the 3atipunan ng mga Sanggunian, the 'ambansang 3atipunan ng mga Jarangay, and the 'ambansang 3atipunan ng mga Jarangay, representing :;,*** barangays, about the same number of 3abataang Jarangay organizations, Sanggunians in ),:I= municipalities, N; provinces, B sub5provinces, and (* cities had informed the 'resident that the prevailing sentiment of the people is for the abolition of the interim 4ational Assembly. 6ther issues concerned the lifting of martial law and amendments to the Constitution .2* The national organizations of Sangguniang Jayan presently proposed to settle the issues of martial law, the interim Assembly, its replacement, the period of its e$istence, the length of the period for the e$ercise by the 'resident of its present powers in a referendum to be held on 6ctober )( . 28 The Jatasang Jayan ,legislative council- created under 'residential Decree <<I of September )*, )<N(, composed of )< cabinet members, < officials with cabinet ran0, <) members of the 9upong Tagapagpaganap ,e$ecutive committee- of the 3atipunan ng mga Sangguniang Jayan voted in session to submit directly to the people in a plebiscite on 6ctober )(, the previously >uoted proposed amendments to the Constitution, including the issue of martial law .29 Similarly, the %barangays% and the %sanggunians% endorsed to the 'resident the submission of the proposed amendments to the people on 6ctober )(. All the foregoing led the 'resident to initiate the proposal of amendments to the Constitution and the subse>uent issuance of 'residential Decree 4o, )*BB on September ;;, )<N( submitting the >uestions ,proposed amendments- to the people in the 4ational Referendum5'lebiscite on 6ctober )(. @

The 'eople is Sovereign ). 2nli0e in a federal state, the location of sovereignty in a unitary state is easily seen. &n the 'hilippines, a republican and unitary state, sovereignty %resides in the people and all government authority emanates from them .3+ &n its fourth meaning, Savigny would treat people as %that particular organized assembly of individuals in which, according to the Constitution, the highest power e$ists.% 31 This is the concept of popular sovereignty. &t means that the constitutional legislator, namely the people, is sovereign 32 &n conse>uence, the people may thus write into the Constitution their convictions on any subAect they choose in the absence of e$press constitutional prohibition. 33 This is because, as 1olmes said, the Constitution %is an e$periment, as all life is all e$periment.% 3(%The necessities of orderly government,% wrote Rottschaefer, %do not re>uire that one generation should be permitted to permanently fetter all future generations.% A constitution is based, therefore, upon a self5limiting decision of the people when they adopt it. 35 ;. The 6ctober )( referendum5plebiscite is a resounding call to the people to e$ercise their sovereign power as constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thin0ing of a single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the authority who can presently e$ercise the powers of the government. &n e>ual vein, the submission of those proposed amendments and the >uestion of martial law in a referendum5plebiscite e$presses but the option of the people themselves implemented only by the authority of the 'resident. &ndeed, it may well be said that the amending process is a sovereign act, although the authority to initiate the same and the procedure to be followed reside somehow in a particular body. @& Referendum5'lebiscite not rendered nugatory by the participation of the )I5year olds. ). 6ctober )( is in parts a referendum and a plebiscite. The >uestion 5 ,)- Do you want martial law to be continued8 5 is a referendum >uestion, wherein the )I5year olds may participate. This was prompted by the desire of the "overnment to reach the larger mas of the people so that their true pulse may be felt to guide the 'resident in pursuing his program for a 4ew 6rder. ?or the succeeding >uestion on the proposed amendments, only those of voting age of )= years may participate. This is the plebiscite aspect, as contemplated in Section ;, Article K@& of the new Constitution. 3) 6n this second >uestion, it would only be the votes of those )= years old and above which will have valid bearing on the results. The fact that the voting

populace are simultaneously as0ed to answer the referendum >uestion and the plebiscite >uestion does not infirm the referendum5plebiscite. There is nothing obAectionable in consulting the people on a given issue, which is of current one and submitting to them for ratification of proposed constitutional amendments. The fear of commingled votes ,)I5year olds and )=5year olds above- is readily dispelled by the provision of two ballot bo$es for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen, and another containing the ballots of voters eighteen years of age and above. 3* The ballots in the ballot bo$ for voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and above contained in another ballot bo$. And, the results of the referendum5plebiscite shall be separately prepared for the age groupings, i.e., ballots contained in each of the two bo$es. 38 ;. &t is apt to distinguish here between a %referendum% and a %plebiscite.% A %referendum% is merely consultative in character. &t is simply a means of assessing public reaction to the given issues submitted to the people foe their consideration, the calling of which is derived from or within the totality of the e$ecutive power of the 'resident. 39 &t is participated in by all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble5minded, or e$5 convicts . (+ A %plebiscite,% on the other hand, involves the constituent act of those %citizens of the 'hilippines not otherwise dis>ualified by law, who are eighteen years of age or over, and who shall have resided in the 'hilippines for at least one year and in the place wherein they propose to vote for at least si$ months preceding the election 9iteracy, property or any other substantive re>uirement is not imposed. &t is generally associated with the amending process of the Constitution, more particularly, the ratification aspect. @&& ). There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom to dissent. That spea0s of a bygone fear. The martial law regime which, in the observation of Dustice ?ernando, (1 is impressed with a mild character recorded no State imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed at. The for the referendum5plebiscite on 6ctober )( recognizes all the embracing freedoms of e$pression and assembly The 'resident himself had announced that he would not countenance any suppression of dissenting views on the issues, as he is not interested in winning a %yes% or %no% vote, but on the genuine sentiment of the people on the issues at hand. (2 Thus, the dissenters soon found their way to the public forums, voicing out loud and clear their adverse views on the proposed amendments and even ,in the valid ratification of the )<NB Constitution, which is already a settled matter. (3 !ven government employees have been held by the Civil Service Commission free to participate in public discussion and even campaign for their stand on the referendum5plebiscite issues. (( @&&&

Time for deliberation is not short. ). The period from September ;) to 6ctober )( or a period of B wee0s is not too short for free debates or discussions on the referendum5plebiscite issues. The >uestions are not new. They are the issues of the day. The people have been living with them since the proclamation of martial law four years ago. The referendums of )<NB and )<NI carried the same issue of martial law. That notwithstanding, the contested brief period for discussion is not without counterparts in previous plebiscites for constitutional amendments. Dustice /a0asiar, in the Referendum Case, recalls+ %2nder the old Society, )I days were allotted for the publication in three consecutive issues of the 6fficial "azette of the women#s suffrage amendment to the Constitution before the scheduled plebiscite on April B*, )<BN ,Com. Act 4o. B:-. The constitutional amendment to append as ordinance the complicated Tydings5 3ocials0ows0i was published in only three consecutive issues of the 6fficial "azette for )* days prior to the scheduled plebiscite ,Com. Act :<;-. ?or the )<:* Constitutional amendments providing for the bicameral Congress, the reelection of the 'resident and @ice 'resident, and the creation of the Commission on !lections, ;* days of publication in three consecutive issues of the 6fficial "azette was fi$ed ,Com Act 4o. I)N-. And the 'arity Amendment, an involved constitutional amendment affecting the economy as well as the independence of the Republic was publicized in three consecutive issues of the 6fficial "azette for ;* days prior to the plebiscite ,Rep. Act 4o. NB-.% (5 ;. &t is worthy to note that Article K@& of the Constitution ma0es no provision as to the specific date when the plebiscite shall be held, but simply states that it %shall be held not later than three months after the approval of such amendment or revision.% &n Coleman v. /iller, () the 2nited States Supreme court held that this matter of submission involves %an appraisal of a great variety of relevant conditions, political, social and economic,% which %are essentially political and not Austiciable.% The constituent body or in the instant cases, the 'resident, may fi$ the time within which the people may act. This is because proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in timeC second, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed, they are to be considered and disposed of presently, and third, ratification is but the e$pression of the approbation of the people, hence, it must be done contemporaneously. (* &n the words of Dameson, %,a-n alteration of the Constitution proposed today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that sentiment may fairly be supposed to e$ist. it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by proper body &4 R!S2/!

The three issues are ). &s the >uestion of the constitutionality of 'residential Decrees 4os. <<), )*B) and )*BB political or Austiciable8 ;. During the present stage of the transition period, and under, the environmental circumstances now obtaining, does the 'resident possess power to propose amendments to the Constitution as well as set up the re>uired machinery and prescribe the procedure for the ratification of his proposals by the people8 B. &s the submission to the people of the proposed amendments within the time frame allowed therefor a sufficient and proper submission8 2pon the first issue, Chief Dustice ?red Ruiz Castro and Associate Dustices !nri>ue /. ?ernando, Claudio Teehan0ee, Antonio '. Jarredo, Cecilia /unoz 'alma, 1ermogenes Concepcion Dr. and Ruperto ". /artin are of the view that the >uestion posed is Austiciable, while Associate Dustices ?eli$ @. /a0asiar, ?eli$ . Antonio and Ramon C. A>uino hold the view that the >uestion is political. 2pon the second issue, Chief Dustice Castro and Associate Dustices Jarredo, /a0asiar, Antonio, A>uino, Concepcion Dr. and /artin voted in the affirmative, while Associate Dustices Teehan0ee and /unoz 'alma voted in the negative. Associate Dustice ?ernando, conformably to his concurring and dissenting opinion in A>uino vs. !nrile ,I< SCRA )=B-, specifically dissents from the proposition that there is concentration of powers in the !$ecutive during periods of crisis, thus raising serious doubts as to the power of the 'resident to propose amendments. 2pon the third issue, Chief Dustice Castro and Associate Dustices Jarredo, /a0asiar, A>uino, Concepcion Dr. and /artin are of the view that there is a sufficient and proper submission of the proposed amendments for ratification by the people. Associate Dustices Jarredo and /a0asiar e$pressed the hope, however that the period of time may be e$tended. Associate Dustices ?ernando, /a0asiar and Antonio are of the view that the >uestion is political and therefore beyond the competence and cognizance of this Court, Associate Dustice ?ernando adheres to his concurrence in the opinion of Chief Dustice Concepcion in "onzales vs. C6/!9!C ,;) SCRA NN:-.Associate Dustices Teehan0ee and /246M 'alma hold that prescinding from the 'resident#s lac0 of authority to e$ercise the constituent power to propose the amendments, etc., as above stated, there is no fair and proper submission with sufficient information and time to assure intelligent consent or reAection under the standards set by this Court in the controlling cases of "onzales, supra, and Tolentino vs. C6/!9!C ,:) SCRA N*;-. Chief Dustice Castro and Associate Dustices Jarredo, /a0asiar, Antonio, A>uino, Concepcion Dr. and /artin voted to dismiss the three petitions at bar. ?or reasons as

e$pressed in his separate opinion, Associate Dustice ?ernando concurs in the result. Associate Dustices Teehan0ee and /unoz 'alma voted to grant the petitions. ACC6RD&4"9H, the vote being = to ; to dismiss, the said petitions are hereby dismissed. This decision is immediately e$ecutory. S6 6RD!R!D.

G.R. No. 1+395) M$r36 31, 1992 BLO M#AR vs. COMMISSION ON ELEC!IONS, respondent. ADIONG, petitioner,

G !IERREZ, 5R., J.: The specific issue in this petition is whether or not the Commission on !lections ,C6/!9!C- may prohibit the posting of decals and stic0ers on %mobile% places, public or private, and limit their location or publication to the authorized posting areas that it fi$es.

6n Danuary )B, )<<;, the C6/!9!C promulgated Resolution 4o. ;B:N pursuant to its powers granted by the Constitution, the 6mnibus !lection Code, Republic Acts 4os. ((:( and N)(( and other election laws. Section )I,a- of the resolution provides+ Sec. )I. 1aw%ul 6lection Pro agan"a) ' The following are lawful election propaganda+ ,a- 'amphlets, leaflets, cards, decals, stic0ers, handwritten or printed letters, or other written or printed materials not more than eight and one5half ,=5)P;- inches in width and fourteen ,):- inches in length. Pro#i"e", That decals and stic0ers may be posted only in any of the authorized posting areas ro#i"e" in paragraph ,f- of Section ;) hereof. Section ;) ,f- of the same resolution provides+ Sec. ;),f-. Prohi!ite" %orms o% election ro agan"a. . &t is unlawful+ $$$ $$$ $$$ ,f- To draw, paint, inscribe, post, display or publicly e$hibit any election propaganda in an& lace, whether u!lic or ri#ate, mo!ile or stationar&, e$cept in the C6/!9!C common posted areas andPor billboards, at the campaign head>uarters of the candidate or political party, organization or coalition, or at the candidate#s own residential house or one of his residential houses, if he has more than one+ Pro#i"e", that such posters or election propaganda shall not e$ceed two ,;- feet by three ,B- feet in size. ,!mphasis supplied$$$ $$$ $$$ The statutory provisions sought to be enforced by C6/!9!C are Section =; of the 6mnibus !lection Code on lawful election propaganda which provides+ 1aw%ul election ro agan"a. . 9awful election propaganda shall include+

,a- 'amphlets, leaflets, cards, decals, stic0ers or other written or printed materials of a size not more than eight and one5half inches in width and fourteen inches in lengthC ,b- 1andwritten or printed letters urging voters to vote for or against any particular candidateC ,c- Cloth, paper or cardboard posters, whether framed or posted, with an area not e$ceeding two feet by three feet, e$cept that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not e$ceeding three feet by eight feet in size, shall be allowed+ Pro#i"e", That said streamers may not be displayed e$cept one wee0 before the date of the meeting or rally and that it shall be removed within seventy5two hours after said meeting or rallyC or ,d- All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an e>ual opportunity to be heard+ Pro#i"e", That the Commission#s authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one wee0 after the authorization has been granted. ,Section BN, )<N= !Cand Section )),a- of Republic Act 4o. ((:( which provides+ Prohi!ite" Forms o% 6lection Pro agan"a. . &n addition to the forms of election propaganda prohibited under Section =I of Jatas 'ambansa Jlg. ==), it shall be unlawful+ ,a- to draw, paint, inscribe, write, post, display or publicly e$hibit any election propaganda in an& lace, whether ri#ate, or u!lic, e*ce t in the common oster areas andPor billboards ro#i"e" in the immediately preceding section, at the candidate#s own residence, or at the campaign head>uarters of the candidate or political party+ Pro#i"e", That such posters or election propaganda shall in no case e$ceed two ,;- feet by three ,B- feet in area+ Pro#i"e", Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two ,;- and not e$ceeding three ,B- feet by eight ,=- feet each may be displayed five ,I- days before the date of the meeting or rally, and shall be removed within twenty5four ,;:- hours after said meeting or rallyC . . . ,!mphasis supplied-

'etitioner Jlo 2mpar Adiong, a senatorial candidate in the /ay )), )<<; elections now assails the C6/!9!C#s Resolution insofar as it prohibits the posting of decals and stic0ers in %mobile% places li0e cars and other moving vehicles. According to him such prohibition is violative of Section =; of the 6mnibus !lection Code and Section )),a- of Republic Act 4o. ((:(. &n addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable inAury with this prohibition. The posting of decals and stic0ers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the /ay )), )<<; elections. ?inally, the petitioner states that as of ?ebruary ;;, )<<; ,the date of the petition- he has not received any notice from any of the !lection Registrars in the entire country as to the location of the supposed %Comelec 'oster Areas.% The petition is impressed with merit. The C6/!9!C#s prohibition on posting of decals and stic0ers on %mobile% places whether public or private e$cept in designated areas ro#i"e" for by the C6/!9!C itself is null and void on constitutional grounds. ?irst . the prohibition unduly infringes on the citizen#s fundamental right of free speech enshrined in the Constitution ,Sec. :, Article &&&-. There is no public interest substantial enough to warrant the 0ind of restriction involved in this case. There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Jill of Rights provision on this basic freedom. All of the protections e$pressed in the Jill of Rights are important but we have accorded to free speech the status of a preferred freedom. ,Thomas v. Collins, B;B 2S I)(, =< 9. !d. :B* E)<:IFC /utuc v. Commission on !lections, B( SCRA ;;= E)<N*FThis >ualitative significance of freedom of e$pression arises from the fact that it is the matri$, the indispensable condition of nearly every other freedom. ,'al0o v. Connecticut, B*; 2.S. B)< E)<BNFC Salonga v. 'aGo, )B: SCRA :B= E)<=IF- &t is difficult to imagine how the other provisions of the Jill of Rights and the right to free elections may be guaranteed if the freedom to spea0 and to convince or persuade is denied and ta0en away. 7e 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 attac0s on government and public officials. ,4ew Hor0 Times Co. v. Sullivan, BN( 2.S. ;I:, )) 9. !d. (=( E)<(:FC cited in the concurring opinion of then Chief Dustice !nri>ue ?ernando in Jabst v. 4ational &ntelligence Joard, )B; SCRA B)( E)<=:F- 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. 7e have also ruled that the preferred freedom of e$pression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to ma0e more meaningful the e>ually vital right of suffrage. ,/utuc v. Commission on !lections, su raThe determination of the limits of the "overnment#s power to regulate the e$ercise by a citizen of his basic freedoms in order to promote fundamental public interests or policy obAectives is always a difficult and delicate tas0. The so5called balancing of interests . individual freedom on one hand and substantial public interests on the other . is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on !lections to supervise the conduct of free, honest, and orderly elections. 7e recognize the fact that under the Constitution, the C6/!9!C during the election period is granted regulatory powers #is-a-#is the conduct and manner of elections, to wit+ Sec. :. The Commission may, during the election period supervise or regulate the enAoyment 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 "overnment or any subdivision, agency, or instrumentality thereof, including any government5 owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure e>ual opportunity, time, and space, and the right to reply, including reasonable e>ual rates therefore, for public information campaigns and forms among candidates in connection with the obAect of holding free, orderly, honest, peaceful and credible elections. ,Article &K,c- section :The variety of opinions e$pressed by the members of this Court in the recent case of National Press Clu! #) Commission on 6lections ,".R. 4o. )*;(IB, /arch I, )<<)- and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election campaign activities and indefensible repression committed in the name of free and honest elections. &n the National Press Clu!, case, the Court had occasion to reiterate the preferred status of freedom of e$pression even as it validated C6/!9!C regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case basis. There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it becomes

obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate. ?or persons who have to resort to Audicial action to stri0e down re>uirements which they deem ine>uitable or oppressive, a court case may prove to be a hollow remedy. The Audicial process, by its very nature, re>uires time for rebuttal, analysis and reflection. 7e cannot act instantly on 0nee5Aer0 impulse. Jy the time we revo0e an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost. 7hen faced with border line situations where freedom to spea0 by a candidate or party and freedom to 0now on the part of the electorate are invo0ed against actions intended for maintaining clean and free elections, the police, local officials and C6/!9!C, should lean in favor of freedom. ?or in the ultimate analysis, the freedom of the citizen and the State#s power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to spea0 and the right to 0now are unduly curtailed. There were a variety of opinions e$pressed in the National Press Clu! #) Commission on 6lections 7su ra8 case but all of us were unanimous that regulation of election activity has its limits. 7e e$amine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through /r. Dustice ?eliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one#s e$pression of belief in a candidate or one#s opinion of his or her >ualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable ne$us with the constitutionally sanctioned obAective. !ven as the Court sustained the regulation of political advertisements, with some rather strong dissents, inNational Press Clu!, we find the regulation in the present case of a different category. The promotion of a substantial "overnment interest is not clearly shown. A government regulation is sufficiently Austified if it is within the constitutional power of the "overnment, if it furthers an important or substantial governmental interestC if the governmental interest is unrelated to the suppression of free e$pressionC and if the incidental restriction on alleged ?irst Amendment freedoms is no greater than is essential to the furtherance of that interest. , I"., at BNN, ;* 9 !d ;d (N;, == S Ct )(NB. ,City Council v. Ta$payers ?or @incent, :(( 2S N=<, =* 9 !d ;d NN;, )*: S Ct ;))= E)<=:FThe posting of decals and stic0ers in mobile places li0e cars and other moving vehicles does not endanger any substantial government interest. There is no clear

public interest threatened by such activity so as to Austify the curtailment of the cherished citizen#s right of free speech and e$pression. 2nder the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to Austify a clamp over one#s mouth or a writing instrument to be stilled+ The case confronts us again with the duty our system places on the Court to say where the individual#s freedom ends and the State#s power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice . . . For these reasons an& attem t to restrict those li!erties must !e 9usti%ie" !& clear u!lic interest, threatene" not "ou!t%ull& or remotel&, !ut !& clear an" resent "anger . The rational connection between the remedy ro#i"e" and the evil to be curbed, which in other conte$t might support legislation against attac0 on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. 6nly the greatest abuses, endangering permanent interests, give occasion for permissible limitation. ,Thomas @. Collins, B;B 2S I)( E)<:IF-. ,!mphasis suppliedSignificantly, the freedom of e$pression curtailed by the >uestioned prohibition is not so much that of the candidate or the political party. The regulation stri0es at the freedom of an individual to e$press his preference and, by displaying it on his car, to convince others to agree with him. A stic0er may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the e$pression becomes a statement by the owner, primarily his own and not of anybody else. &f, in the National Press Clu! case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid5for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a stic0er or decal on his private property. Second . the >uestioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when %it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subAect to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.% ,Mwic0ler v. 3oota, )< 9 ed ;d ::: E)<(NF-. &n 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. &n 9ovell v. "riffin, B*B 2S :::, =; 9 ed <:<, I= S Ct (((, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in "riffin, "eorgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. &n Schneider v. &rvington, B*= 2S ):N, =: 9 ed )II, (* S Ct. ):(, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. &n holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, %the courts should be astute to e$amine the effect of the challenged legislation. /ere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to Austify such as diminishes the e$ercise of rights so vital to the maintenance of democratic institutions,% B*= 2S, at )(). &n Cantwell v Connecticut, B)* 2S ;<(, =: 9 ed );)B, (* S Ct. <**, );= A9R )BI;, the Court said that %EcFonduct remains subAect to regulation for the protection of society,% but pointed out that in each case %the power to regulate must be so e$ercised as not, in attaining a permissible end, unduly to infringe the protected freedom.% ,B)* 2S at B*:- ,Shelton v. Tuc0er, B(: 2S :N< E)<(*F The resolution prohibits the posting of decals and stic0ers not more than eight and one5half ,=5)P;- inches in width and fourteen ,):- inches in length in an& lace, inclu"ing mo!ile laces whether public or private e$cept in areas designated by the C6/!9!C. @erily, the restriction as to where the decals and stic0ers should be posted is so broad that it encompasses even the citizen#s private property, which in this case is a privately5owned vehicle. &n conse>uence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section ), Article &&& of the Jill of Rights provides that no person shall be deprived of his property without due process of law+

'roperty is more than the mere thing which a person owns, it includes the right to ac>uire, use, and dispose of itC and the Constitution, in the ):th Amendment, protects these essential attributes. 'roperty is more than the mere thing which a person owns. &t is elementary that it includes the right to ac>uire, use, and dispose of it. The Constitution protects these essential attributes of property. 1olden v. 1ardy, )(< 2.S. B((, B<), :) 9. ed. N=*, N<*, )= Sup. Ct. Rep. B=B. 'roperty consists of the free use, enAoyment, and disposal of a person#s ac>uisitions without control or diminution save by the law of the land. ) Cooley#s Jl. Com. );N. ,Juchanan v. 7arley ;:I 2S (* E)<)NFAs earlier stated, we have to consider the fact that in the posting of decals and stic0ers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. &n such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stic0ers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information+ ?reedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the na0ed restriction of the dissemination of ideas.% ,/artin v. City of Struthers, 6hio, B)< 2.S. ):)C =N 9. ed. )B)B E)<:BFThe right to property may be subAect to a greater degree of regulation but when this right is Aoined by a %liberty% interest, the burden of Austification on the part of the "overnment must be e$ceptionally convincing and irrefutable. The burden is not met in this case. Section )) of Rep. Act ((:( is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, e$cept in the common poster areas sanctioned by C6/!9!C. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. 7hile the C6/!9!C will certainly never re>uire the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.

The provisions allowing regulation are so loosely worded that they include the posting of decals or stic0ers in the privacy of one#s living room or bedroom. This is delegation running riot. As stated by Dustice Cardozo in his concurrence in Panama Re%ining Co) #) R&an ,;<B 2.S. B==C N< 9. !d. ::( E)<BI-, %The delegated power is unconfined and vagrant . . . This is delegation running riot. 4o such plentitude of power is susceptible of transfer.% Third . the constitutional obAective to give a rich candidate and a poor candidate e>ual opportunity to inform the electorate as regards their candidacies, mandated by Article &&, Section ;( and Article K&&&, section ) in relation to Article &K ,c- Section : of the Constitution, is not impaired by posting decals and stic0ers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of e$pression, any financial considerations behind the regulation are of marginal significance. 2nder section ;( Article && of the Constitution, %The State shall guarantee e5ual access to opportunities for public service, . . . while under section ), Article K&&& thereof %The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and olitical ine5ualities, and remove cultural ine>uities by e>uitably diffusing wealth and political power for the common good.% ,!mphasis supplied&t is to be reiterated that the posting of decals and stic0ers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. 1ence, the preference of the citizen becomes crucial in this 0ind of election propaganda not the financial resources of the candidate. 7hether the candidate is rich and, therefore, can afford to doleout more decals and stic0ers or poor and without the means to spread out the same number of decals and stic0ers is not as important as the right of the owner to freely e$press his choice and e$ercise his right of free speech. The owner can even prepare his own decals or stic0ers for posting on his personal property. To stri0e down this right and enAoin it is impermissible encroachment of his liberties. &n sum, the prohibition on posting of decals and stic0ers on %mobile% places whether public or private e$cept in the authorized areas designated by the C6/!9!C becomes censorship which cannot be Austified by the Constitution+ . . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands.

7hatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The 'residency in the e$ecution of the laws cannot ignore or disregard what it ordains. &n its tas0 of applying the law to the facts as found in deciding cases, the Audiciary is called upon to maintain inviolate what is decreed by the fundamental law. !ven its power of Audicial review to pass upon the validity of the acts of the coordinate branches in the course of adAudication is a logical. corollary of this basic principle that the Constitution is paramount. &t overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. ,/utuc v. Commission on !lections, su raThe unusual circumstances of this year#s national and local elections call for a more liberal interpretation of the freedom to spea0 and the right to 0now. &t is not alone the widest possible dissemination of information on platforms and programs which concern us. 4or are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. ,Cf. 4ew Hor0 Times v. Sullivan, su ra- The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two5thirds of the candidates running for Senator. The public does not 0now who are aspiring to be elected to public office. There are many candidates whose names alone evo0e >ualifications, platforms, programs and ideologies which the voter may accept or reAect. 7hen a person attaches a stic0er with such a candidate#s name on his car bumper, he is e$pressing more than the nameC he is espousing ideas. 6ur review of the validity of the challenged regulation includes its effects in today#s particular circumstances. 7e are constrained to rule against the C6/!9!C prohibition. 71!R!?6R!, the petition is hereby "RA4T!D. The portion of Section )I ,a- of Resolution 4o. ;B:N of the Commission on !lections providing that %decals and stic0ers may be posted only in any of the authorized posting areas ro#i"e" in paragraph ,f- of Section ;) hereof% is D!C9AR!D 4299 and @6&D. S6 6RD!R!D.

G.R. No. 133(8)

5$%,$r- 28, 2+++ COR#ORA!ION, petitioner,

ABS;CBN BROADCAS!ING vs. COMMISSION ON ELEC!IONS, respondent. #ANGANIBAN, J.:

The holding of e$it polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. 1ence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and

credible elections. uite the contrary, e$it polls . properly conducted and publicized . can be vital tools in eliminating the evils of election5fi$ing and fraud. 4arrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of e$it polls, without transgressing in any manner the fundamental rights of our people. The Case an" the Facts Jefore us is a 'etition for Certiorari under Rule (I of the Rules of Court assailing Commission on !lections ,Comelec- en !anc Resolution 4o. <=5):)<) dated April ;), )<<=. &n the said Resolution, the poll body R!S69@!D to approve the issuance of a restraining order to stop AJS5 CJ4 or any other groups, its agents or representatives from conducting such e$it survey and to authorize the 1onorable Chairman to issue the same. The Resolution was issued by the Comelec allegedly upon %information from EaF reliable source that AJS5CJ4 ,9opez "roup- has prepared a proAect, with 'R groups, to conduct radio5T@ coverage of the elections . . . and to ma0e EanF e$it survey of the . . . vote during the elections for national officials particularly for 'resident and @ice 'resident, results of which shall be EbroadcastF immediately.%; The electoral body believed that such proAect might conflict with the official Comelec count, as well as the unofficial >uic0 count of the 4ational /ovement for ?ree !lections ,4amfrel-. &t also noted that it had not authorized or deputized 'etitioner AJS5CJ4 to underta0e the e$it survey. 6n /ay <, )<<=, this Court issued the Temporary Restraining 6rder prayed for by petitioner. 7e directed the Comelec to cease and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. &n fact, the e$it polls were actually conducted and reported by media without any difficulty or problem. The Issues 'etitioner raises this lone issue+ %7hether or not the Respondent Commission acted with grave abuse of discretion amounting to a lac0 or e$cess of Aurisdiction when it approved the issuance of a restraining order enAoining the petitioner or any Eother groupF, its agents or representatives from conducting e$it polls during the . . . /ay )) elections.%B &n his /emorandum,: the solicitor general, in see0ing to dismiss the 'etition, brings up additional issues+ ,)- mootness and ,;- prematurity, because of petitioner#s failure to see0 a reconsideration of the assailed Comelec Resolution.

The Court,s Ruling The 'etitionI is meritorious. Proce"ural Issues+ Mootness an" Prematurit& The solicitor general contends that the petition is moot and academic, because the /ay )), )<<= election has already been held and done with. Allegedly, there is no longer any actual controversy before us. The issue is not totally moot. 7hile the assailed Resolution referred specifically to the /ay )), )<<= election, its implications on the people#s fundamental freedom of e$pression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. Jy its very nature, e$it polling is tied up with elections. To set aside the resolution of the issue now will only postpone a tas0 that could well crop up again in future elections.( &n any event, in Salonga #. Cru$ Pa:o, the Court had occasion to reiterate that it %also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. &t has the symbolic function of educating bench and bar on the e$tent of protection given by constitutional guarantees.% N Since the fundamental freedoms of speech and of the press are being invo0ed here, we have resolved to settle, for the guidance of posterity, whether they li0ewise protect the holding of e$it polls and the dissemination of data derived therefrom. The solicitor general further contends that the 'etition should be dismissed for petitioner#s failure to e$haust available remedies before the issuing forum, specifically the filing of a motion for reconsideration. This Court, however, has ruled in the past that this procedural re>uirement may be glossed over to prevent a miscarriage of Austice, = when the issue involves the principle of social Austice or the protection of labor, < when the decision or resolution sought to be set aside is a nullity, )* or when the need for relief is e$tremely urgent andcertiorari is the only ade>uate and speedy remedy available.)) The instant 'etition assails a Resolution issued by the Comelec en !anc on April ;), )<<=, only twenty ,;*- days before the election itself. Jesides, the petitioner got hold of a copy thereof only on /ay :, )<<=. 2nder the circumstances, there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time or the /ay )), )<<= elections. /oreover, not only is time of the essenceC the 'etition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore Austified.

Main Issue+ 2ali"it& o% Con"ucting 6*it Polls An e$it poll is a species of electoral survey conducted by >ualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially as0ing randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. &n our electoral history, e$it polls had not been resorted to until the recent /ay )), )<<= elections. &n its 'etition, AJS5CJ4 Jroadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election5related data, including %the e$clusive results of Social 7eather Station ,S7S- surveys conducted in fifteen administrative regions.% &t argues that the holding of e$it polls and the nationwide reporting their results are valid e$ercises of the freedoms of speech and of the press. &t submits that, in precipitately and un>ualifiedly restraining the holding and the reporting of e$it polls, the Comelec gravely abused its discretion and grossly violated the petitioner#s constitutional rights. 'ublic respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. &t insists that the issuance thereof was %pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible /ay )), )<<= elections%C and %to protect, preserve and maintain the secrecy and sanctity of the ballot.% &t contends that %the conduct of e$it surveys might unduly confuse and influence the voters,% and that the surveys were designed %to condition the minds of people and cause confusion as to who are the winners and the ElosersF in the election,% which in turn may result in %violence and anarchy.% 'ublic respondent further argues that %e$it 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 ;, Article @ of the ConstitutionC); and relevant provisions of the 6mnibus !lection Code. )B &t submits that the constitutionally protected freedoms invo0ed by petitioner %are not immune to regulation by the State in the legitimate e$ercise of its police power,% such as in the present case. The solicitor general, in support of the public respondent, adds that the e$it 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. 1e 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 >uic0 count underta0en by the 4amfrel. Admittedly, no law prohibits the holding and the reporting of e$it polls. The >uestion can thus be more narrowly defined+ /ay the Comelec, in the e$ercise of its powers, totally ban e$it polls8 &n answering this >uestion, we need to review >uic0ly our Aurisprudence on the freedoms of speech and of the press. Nature an" Sco e o% Free"oms o% S eech an" o% the Press The freedom of e$pression is a fundamental principle of our democratic government. &t %is a #preferred# right and, therefore, stands on a higher level than substantive economic or other liberties. . . . ETFhis 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.%): 6ur Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.)I&n the landmar0 case (on$ales #. Comelec,)( this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of e$pression is a means of assuring individual self5fulfillment, of attaining the truth, of securing participation by the people in social and political decision5ma0ing, and of maintaining the balance between stability and change. )N &t represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open. )= &t means more than the right to approve e$isting political beliefs or economic arrangements, to lend support to official measures, or to ta0e refuge in the e$isting climate of opinion on any of public conse>uence. And paraphrasing the eminent Dustice 6liver 7endell 1olmes,)< we stress that the freedom encompasses the thought we hate, no less than the thought we agree with. 1imitations The realities of life in a comple$ society, however, preclude an absolute e$ercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances. ;* They are not immune to regulation by the State in the e$ercise of its police power. ;) 7hile the liberty to thin0 is absolute, the power to e$press such thought in words and deeds has limitations. &n Ca!ansag #. Fernan"e$;; 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 conse>uence of the comment or utterance must be %e$tremely serious and the degree of imminence e$tremely high% before the utterance can be punished. The danger to be guarded against is the %substantive evil% sought to be prevented. . . .;B 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. &t is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. &t is sufficient that such acts be advocated in general terms. 4or is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. &t is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body see0s to prevent. ;: 2n>uestionably, this Court adheres to the %clear and present danger% test. &t implicitly did in its earlier decisions in 'rimicias v. ?ugoso ;I and American Bi!le Societ& #. Cit& o% ManilaC;( as well as in later ones, 2era #. Arca,;NNa#arro #. 2illegas,;= Im!ong #. Ferrer,;< Blo ;m ar A"iong #. ComelecB* and, more recently, in Iglesia ni Cristo #. MTRCB.B) &n setting the standard or test for the %clear and present danger% doctrine, the Court echoed the words of Dustice 1olmes+ %The >uestion 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. &t is a >uestion of pro$imity and degree.%B; A limitation on the freedom of e$pression may be Austified only by a danger of such substantive character that the state has a right to prevent. 2nli0e in the %dangerous tendency% doctrine, the danger must not only be clear but also present. %'resent% refers to the time elementC the danger must not only be probable but very li0ely to be inevitable.BB The evil sought to be avoided must be so substantive as to Austify a clamp over one#s mouth or a restraint of a writing instrument.B: +usti%ication %or a Restriction Doctrinally, the Court has always ruled in favor of the freedom of e$pression, and any restriction is treated an e$emption. The power to e$ercise prior restraint is not to be presumedC rather the presumption is against its validity. BI And it is respondent#s burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows,B( so it has been said. To Austify a restriction, the promotion of a substantial government interest must be clearly shown.BN Thus+

A government regulation is sufficiently Austified if it is within the constitutional power of the government, if it furthers an important or substantial government interestC if the governmental interest is unrelated to the suppression of free e$pressionC and if the incidental restriction on alleged ?irst Amendment freedoms is no greater than is essential to the furtherance of that interest.B= 1ence, even though the government#s purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, when the end can be more narrowly achieved.B< The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant. to add meaning to the e>ually vital right of suffrage. :* 7e cannot support any ruling or order %the effect of which would be to nullify so vital a constitutional right as free speech.% :) 7hen faced with borderline situations in which the freedom of a candidate or a party to spea0 or the freedom of the electorate to 0now is invo0ed against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. ?or in the ultimate analysis, the freedom of the citizen and the State#s power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to spea0 and the right to 0now are unduly curtailed. :; True, the government has a sta0e in protecting the fundamental right to vote by providing voting places that are safe and accessible. &t has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. 1owever, in order to Austify a restriction of the people#s freedoms of speech and of the press, the state#s responsibility of ensuring orderly voting must far outweigh them. These freedoms have additional importance, because e$it 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 e$it poll data not only for election5day proAections, but also for long5term research.:B Comelec Ban on 6*it Polling &n the case at bar, the Comelec Austifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. 7hile admitting that %the conduct of an e$it poll and the broadcast of the results thereof EareF . . . an e$ercise of press freedom,% it argues that %EpFress freedom may be curtailed if the e$ercise thereof creates a clear and present danger to the community or it has a dangerous tendency.% &t then contends that %an e$it poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further ma0eEsF the e$it poll highly unreliable. The probability

that the results of such e$it poll may not be in harmony with the official count made by the Comelec . . . is ever present. &n other words, the e$it 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. ?irst, 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. &t 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. ?inally, not at sta0e here are the credibility and the integrity of the elections, which are e$ercises that are separate and independent from the e$it polls. The holding and the reporting of the results of e$it polls cannot undermine those of the elections, since the former is only part of the latter. &f at all, the outcome of one can only be indicative of the other. The Comelec#s concern with the possible noncommunicative effect of e$it polls . disorder and confusion in the voting centers . does not Austify a total ban on them. 2ndoubtedly, the assailed Comelec Resolution is too broad, since its application is without >ualification as to whether the polling is disruptive or not. :: Concededly, the 6mnibus !lection Code prohibits disruptive behavior around the voting centers.:I There is no showing, however, that e$it polls or the means to interview voters cause chaos in voting centers. 4either has any evidence been presented proving that the presence of e$it poll reporters near an election precinct tends to create disorder or confuse the voters. /oreover, the prohibition incidentally prevents the collection of e$it poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters# answer to the survey >uestions will forever remain un0nown and une$plored. 2nless 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 election5day and other factors on voters# choices.<=w hi<)n>t &n -ail& 3eral" Co. #. Munro,:( the 2S 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. ?urthermore, the general interest of the State in insulating voters from outside influences is insufficient to Austify speech regulation. Dust as curtailing election5day 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 e$it poll restriction.:N

The absolute ban imposed by the Comelec cannot, therefore, be Austified. &t does not leave open any alternative channel of communication to gather the type of information obtained through e$it polling. 6n the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by e$it surveys. ?or instance, a specific limited area for conducting e$it polls may be designated. 6nly professional survey groups may be allowed to conduct the same. 'ollsters may be 0ept at a reasonable distance from the voting center. They may be re>uired to e$plain 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 re>uired to wear distinctive clothing that would show they are not election officials. := Additionally, they may be re>uired to underta0e an information campaign on the nature of the e$ercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election. ?or its part, petitioner AJS5CJ4 e$plains its survey methodology as follows+ ,)communities are randomly selected in each provinceC ,;- residences to be polled in such communities are also chosen at randomC ,B- only individuals who have already voted, as shown by the indelible in0 on their fingers, are interviewedC ,:- the interviewers use no cameras of any sortC ,I- the poll results are released to the public only on the day after the elections. :< These precautions, together with the possible measures earlier stated, may be underta0en to abate the Comelec#s fear, without conse>uently and unAustifiably stilling the people#s voice. 7ith 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. uite the contrary, instead of disrupting elections, e$it polls . properly conducted and publicized . can be vital tools for the holding of honest, orderly, peaceful and credible electionsC and for the elimination of election5fi$ing, fraud and other electoral ills. 2iolation o% Ballot Secrec& The contention of public respondent that e$it polls indirectly transgress the sanctity and the secrecy of the ballot is off5tangent to the real issue. 'etitioner does not see0 access to the ballots cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from e$hibiting the contents of their official ballots to other persons, from ma0ing copies thereof, or from putting distinguishing mar0s 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. &n e$it polls, the contents of the official ballot are not actually e$posed. ?urthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. @oters may also choose not to reveal their identities. &ndeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of e$it polls, without transgressing the fundamental rights of our people. 71!R!?6R!, the 'etition is "RA4T!D, and the Temporary Restraining 6rder issued by the Court on /ay <, )<<= is made '!R/A4!4T. Assailed /inute Resolution 4o. <=5):)< issued by the Comelec en !anc on April ;), )<<= is hereby 4299&?&!D and S!T AS&D!. 4o costs. S6 6RD!R!D.

"RANCISCO CHA<EZ, Petitioner ; =er7,7 ; RA L M. GONZALES, 0% 607 3$p$30t- $7 t6e Se3ret$r- o9 t6e Dep$rtme%t o9 5,7t03e> $%& NA!IONAL !ELECOMM NICA!IONS COMMISSION ?N!C@, Res on"ents) G.R. No. 1)8338

'romulgated+ ?ebruary )I, ;**= DECISION '246, C)+)+ A. Precis &n this Aurisdiction, it is established that freedom of the press is crucial and so ine$tricably woven into the right to free speech and free e$pression, that any attempt to restrict it must be met with an e$amination so critical that only a danger that is clear and present would be allowed to curtail it. &ndeed, we have not wavered in the duty to uphold this cherished freedom. 7e have struc0 down laws and issuances meant to curtail this right, as in A"iong #) COM616C,E)F Burgos #) Chie% o% Sta%%,E;FSocial 0eather Stations #) COM616C,
EBF

tape, one supposedly the complete version, and the other, a spliced, OdoctoredQ or altered version, which would suggest that the 'resident had instructed the C6/!9!C official to manipulate the election results in the 'residentLs favor. E(F &t seems that Secretary Junye admitted that the voice was that of 'resident Arroyo, but subse>uently made a retraction. ENF ;. 6n Dune N, ;**I, former counsel of deposed 'resident Doseph !strada, Atty. Alan 'aguia, subse>uently released an alleged authentic tape recording of the wiretap. &ncluded in the tapes were purported conversations of the 'resident, the ?irst "entleman Dose /iguel Arroyo, C6/!9!C Commissioner "arcillano, and the late Senator Jarbers. E=F B. 6n Dune =, ;**I, respondent Department of Dustice ,D6D- Secretary Raul "onzales warned reporters that those who had copies of the compact disc ,CD- and those broadcasting or publishing its contents could be held liable under the Anti57iretapping Act. These persons included Secretary Junye and Atty. 'aguia. 1e also stated that persons possessing or airing said tapes were committing a continuing offense, subAect to arrest by anybody who had personal 0nowledge if the crime was committed or was being committed in their presence.E<F :. 6n Dune <, ;**I, in another press briefing, Secretary "onzales ordered the 4ational Jureau of &nvestigation ,4J&- to go after media organizations O%oun" to ha#e cause" the s rea", the la&ing an" the rinting o% the contents o% a ta eQ of an alleged wiretapped conversation involving the 'resident about fi$ing votes in the ;**: national elections. "onzales said that he was going to start with I%A*.%et, a Aoint venture between the #6010pp0%e D$01- I%A,0rer $%& GMA* television networ0, because by the very nature of the &nternet medium, it was able to disseminate the contents of the tape more widely. 1e then e$pressed his intention of

and Ba&an #) 6*ecuti#e Secretar& 6rmita)[4] 7hen on its face, it is clear that a

governmental act is nothing more than a na0ed means to prevent the free e$ercise of speech, it must be nullified. B. The Facts ). The case originates from events that occurred a year after the ;**: national and local elections. 6n Dune I, ;**I, 'ress Secretary &gnacio Junye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the 'resident of the 'hilippines, "loria /acapagal Arroyo, and a high5 ran0ing official of the Commission on !lections ,C6/!9!C-. The conversation was audiotaped allegedly through wire5tapping. EIF 9ater, in a Malaca:ang press briefing, Secretary Junye produced two versions of the

inviting the editors and managers of &n>N.net and "/AN to a probe, and supposedly declared, O& EhaveF as0ed the 4J& to conduct a tactical interrogation of all concerned.Q E)*F I. 6n Dune )), ;**I, the 4TC issued this press release+ E))F 4TC "&@!S ?A&R 7AR4&4" T6 RAD&6 A4D T!9!@&S&64 674!RSP6'!RAT6RS T6 6JS!R@! A4T&57&R!TA''&4" 9A7 A4D '!RT&4!4T C&RC29ARS 64 'R6"RA/ STA4DARDS $$$ $$$ $$$

appropriate investigation, the concerned radio and television companies are hereby B$r%e& t6$t t6e0r bro$&3$7tC$0r0%8 o9 7,36 9$17e 0%9orm$t0o% $%&Cor B0119,1 m07repre7e%t$t0o% 76$11 be D,7t 3$,7e 9or t6e 7,7pe%70o%, re=o3$t0o% $%&Cor 3$%3e11$t0o% o9 t6e 103e%7e7 or $,t6or0E$t0o%7 077,e& to t6e 7$0& 3omp$%0e7. &n addition to the above, the E4TCF reiterates the pertinent 4TC circulars on program standards to be observed by radio and television stations. 4TC /emorandum Circular )))5);5=I e$plicitly states, among others, that Oall radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose andPor incite treason, rebellion or sedition.Q The foregoing directive had been reiterated by 4TC /emorandum Circular 4o. ;;5=<, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. !6e FN!C. B011 %ot 6e70t$te, $9ter ob7er=0%8 t6e reA,0reme%t7 o9 &,e pro3e77, to $pp1- B0t6 9,11 9or3e t6e pro=070o%7 o9 7$0& C0r3,1$r7 $%& t6e0r $33omp$%-0%8 7$%3t0o%7 o% err0%8 r$&0o $%& te1e=070o% 7t$t0o%7 $%& t6e0r oB%er7Coper$tor7. (. 6n Dune ):, ;**I, 4TC held a &0$1o8,e with the Joard of Directors of the /a isanan ng mga Bro"kaster sa Pili inas 7/BP8 . 4TC allegedly assured the 3J' that the press release did not violate the constitutional freedom of speech, of e$pression, and of the press, and the right to information. Accordingly, 4TC and 3J'
E);F

Ta0ing into consideration the countryLs unusual situation, and in order not to unnecessarily aggravate the same, the 4TC B$r%7 all radio stations and television networ0 ownersPoperators that the conditions of the authorization and permits issued to them by "overnment li0e the 'rovisional Authority andPor Certificate of Authority e$plicitly provides that said companies shall not use EtheirF stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the E4TCF that certain personalities are in possession of alleged taped conversations which they claim involve the 'resident of the 'hilippines and a Commissioner of the C6/!9!C regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the E4TCF that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti57iretapping 9aw and the conditions of the 'rovisional Authority andPor Certificate of Authority issued to these radio and television stations. &t has been subse>uently established that the said tapes are false andPor fraudulent after a prosecution or

issued

a 5o0%t

#re77

St$teme%t which states, among others, that+

R 4TC respects and will not hinder freedom of the press and the right to information on matters of public concern. 3J' S its members have always been committed to the e$ercise of press freedom with high

sense of responsibility and discerning Audgment of fairness and honesty. R 4TC did not issue any /C E/emorandum CircularF or 6rder constituting a restraint of press freedom or censorship. The 4TC further denies and does not intend to limit or restrict the interview of members of the opposition or free e$pression of views. R 7hat is being as0ed by 4TC is that the e$ercise of press freedom EbeF done responsibly. R 3J' has program standards that 3J' members will observe in the treatment of news and public affairs programs. These include verification of sources, non5 airing of materials that would constitute inciting to sedition andPor rebellion. R The 3J' Codes also re>uire that no false statement or willful misrepresentation is made in the treatment of news or commentaries. R The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being underta0en to verify and validate the authenticity and actual content of the same.Q

Alleging that the acts of respondents are violations of the freedom on e$pression and of the press, and the right of the people to information on matters of public concern,E):F petitioner specifically as0ed this Court+ E?For EtheF nullification of acts, issuances, and orders of respondents committed or made since Dune (, ;**I until the present that curtail the publicLs rights to freedom of e$pression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of 'resident Arroyo and for prohibition of the further commission of such acts, and ma0ing of such issuances, and orders by respondents. E)IF RespondentsE)(F denied that the acts transgress the Constitution, and >uestioned petitionerLs legal standing to file the petition. Among the arguments they raised as to the validity of the Ofair warningQ issued by respondent 4TC, is that broadcast media enAoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the 4TCLs mandate to regulate the telecommunications industry. E)NF &t was also stressed that Omost of the EtelevisionF and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the 4TC and 3J'.Q E)=F D. THE PR CED!RA" THRE#H "D: "E$A" #TA%D&%$ To be sure, the circumstances of this case ma0e the constitutional challenge peculiar. 'etitioner, who is not a member of the broadcast media, prays that we stri0e down the acts and statements made by respondents as violations of the right to free speech, free e$pression and a free press. ?or another, the recipients of the press statements have not come forward.neither intervening nor Aoining petitioner in this action. &ndeed, as a group, they issued a Aoint statement with respondent 4TC that does not complain about restraints on freedom of the press.

C. The Petition 'etitioner Chavez filed a petition under Rule (I of the Rules of Court against respondents Secretary "onzales and the 4TC, Opraying for the issuance of the writs of certiorari and prohibition, as e$traordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive e$ercise of authority by the respondents.QE)BF

&t would seem, then, that petitioner has not met the re>uisite legal standing, having failed to allege Osuch a personal sta0e 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 >uestions.Q
E)<F

t6e t-pe7 o9 7pee36e7 $%& t6e0r &099er0%8 re7tr$0%t7 $11oBe& b- 1$B> ?3@ to &073,77 t6e 3ore 3o%3ept7 o9 pr0or re7tr$0%t, 3o%te%t;%e,tr$1 $%& 3o%te%t;b$7e& re8,1$t0o%7 $%& t6e0r 3o%7t0t,t0o%$1 7t$%&$r& o9 re=0eB> ?(@ to eG$m0%e t6e 607tor03$1 &099ere%3e 0% t6e tre$tme%t o9 re7tr$0%t7 betBee% pr0%t $%& bro$&3$7t me&0$ $%& 7tre77 t6e 7t$%&$r& o9 re=0eB 8o=er%0%8 bot6> $%& ?5@ to 3$11 $tte%t0o% to t6e o%8o0%8 b1,rr0%8 o9 t6e 10%e7 o9 &07t0%3t0o% betBee% pr0%t $%& bro$&3$7t me&0$.

Jut as early as half a century ago, we have already held that where serious constitutional >uestions are involved, Othe transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure.Q E;*F Subse>uently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal >uestions that greatly impact on public interest, E;)F in 0eeping with the Court#s duty under the )<=N Constitution to determine whether or not other branches of government have 0ept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus stan"i when a case involves an issue of overarching significance to our society, E;;F we therefore brush aside technicalities of procedure and ta0e cognizance of this petition, E;BF seeing as it involves a challenge to the most e$alted of all the civil rights, the freedom of e$pression. !6e pet0t0o% r$07e7 ot6er 077,e7 10:e t6e eGte%t o9 t6e r086t to 0%9orm$t0o% o9 t6e p,b103. It 07 9,%&$me%t$1, 6oBe=er, t6$t Be %ee& %ot $&&re77 $11 077,e7 b,t o%1- t6e mo7t &e3070=e o%e B6036 0% t6e 3$7e $t b$r 07 B6et6er t6e $3t7 o9 t6e re7po%&e%t7 $br0&8e 9ree&om o9 7pee36 $%& o9 t6e pre77. B,t $70&e 9rom t6e pr0mor&0$1 077,e o9 &eterm0%0%8 B6et6er 9ree 7pee36 $%& 9ree&om o9 t6e pre77 6$=e bee% 0%9r0%8e&, t6e 3$7e $t b$r $17o 80=e7 t607 Co,rt t6e opport,%0t-H ?1@ to &07t011 t6e e77e%3e o9 9ree&om o9 7pee36 $%& o9 t6e pre77 %oB be31o,&e& b- t6e =$8$r0e7 o9 mot6er6oo& 7t$teme%t7> ?2@ to 31$r09-

E. RE'E(A)&%&%$ THE "A* % FREED ) F #PEECH, F E(PRE##& % A%D F THE PRE## No law shall !e asse" a!ri"ging the %ree"om o% s eech, o% e* ression, or o% the ress, or the right o% the eo le eacea!l& to assem!le an" etition the go#ernment %or re"ress o% grie#ances) [+4] ?reedom of e$pression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article &&&, Section : of the Constitution, copied almost verbatim from the ?irst Amendment of the 2.S. Jill of Rights, E;IF were considered the necessary conse>uence of republican institutions and the complement of free speech. E;(F This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.E;NF &n the 'hilippines, the primacy and high esteem accorded freedom of e$pression is a fundamental postulate of our constitutional system. E;=F This right was elevated to constitutional status in the )<BI, the )<NB and the )<=N Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom. E;<F /oreover,

our history shows that the struggle to protect the freedom of speech, e$pression and the press was, at bottom, the struggle for the indispensable preconditions for the e$ercise of other freedoms.
EB*F

?reedom of speech and of the press means something more than the right to approve e$isting political beliefs or economic arrangements, to lend support to official measures, and to ta0e refuge in the e$isting climate of opinion on any matter of public conse>uence.EB(F 7hen atrophied, the right becomes meaningless. EBNF The right belongs as well 55 if not more U to those who >uestion, who do not conform, who differ.EB=F The ideas that may be e$pressed under this freedom are confined not only to those that are conventional or acceptable to the maAority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodo$ view, though it be hostile to or derided by othersC or though such view Oinduces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.Q EB<F To paraphrase Dustice 1olmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. E:*F

?or it is only when the people have unbridled access to

information and the press that they will be capable of rendering enlightened Audgments. &n the oft5>uoted words of Thomas Defferson, we cannot both be free and ignorant. E.,. AB#TRACT& % F FREE #PEECH Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Jill of Rights provision on this basic freedom.
EB)F

7hat is embraced under this provision was discussed e$haustively by the Court

in (on$ales #) Commission on 6lections, EB;F in which it was held+ TAt the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subse>uent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. EBBF (on$ales further e$plained that the vital need of a constitutional democracy for freedom of e$pression is undeniable, whether as a means of assuring individual self5fulfillmentC of attaining the truthC of assuring participation by the people in social, including political, decision5ma0ingC and of maintaining the balance between stability and change.EB:F As early as the )<;*s, the trend as reflected in 'hilippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide5open. EBIF

The scope of freedom of e$pression is so broad that it e$tends protection to nearly all forms of communication. &t protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the e$igencies of their period. The constitutional protection assures the broadest possible e$ercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution#s basic guarantee of freedom to advocate ideas is not confined to the e$pression of ideas that are conventional or shared by a maAority. The constitutional protection is not limited to the e$position of ideas. The protection afforded free speech e$tends to speech or publications that are entertaining as well as instructive or informative. Specifically, in 6astern Broa"casting Cor oration 7-?R68 #) -ans,E:)F this Court stated that all forms of

media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of e$pression. 7hile all forms of communication are entitled to the broad protection of freedom of e$pression clause, t6e 9ree&om o9 901m, te1e=070o% $%& r$&0o bro$&3$7t0%8 07 7omeB6$t 1e77er 0% 73ope t6$% t6e 9ree&om $33or&e& to %eB7p$per7 $%& ot6er pr0%t me&0$, $7 B011 be 7,b7eA,e%t1- &073,77e&. E.+. D&FFERE%T&AT& %: THE "&)&T# - RE#TRA&%T# F FREE #PEECH ?rom the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. Jut the realities of life in a comple$ society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. ?or freedom of e$pression is not an absolute, this freedom.Q !6,7, $11 7pee36 $re %ot tre$te& t6e 7$me. Some types of speech may be subAected to some regulation by the State under its pervasive police power, in order that it may not be inAurious to the e>ual right of others or those of the community or society. E:BF The difference in treatment is e$pected because the relevant interests of one type of speech, e)g), political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. E::F 7e have ruled, for e$ample, that in our Aurisdiction slander or libel, lewd and obscene speech, as well as Ofighting wordsQ are not entitled to constitutional protection and may be penalized.E:IF /oreover, the techni>ues of reviewing alleged restrictions on speech ,overbreadth, vagueness, and so on- have been applied differently to each category,
E:;F

either consciously or unconsciously. E:(F A study of free speech Aurisprudence. whether here or abroad.will reveal that courts have developed different tests as to specific types or categories of speech in concrete situationsC i)e), subversive speechC obscene speechC the speech of the broadcast media and of the traditional print mediaC libelous speechC speech affecting associational rightsC speech before hostile audiencesC symbolic speechC speech that affects the right to a fair trialC and speech associated with rights of assembly and petition. E:NF "enerally, restraints on freedom of speech and e$pression are evaluated by either or a combination of three tests, i)e), ,a- the &$%8ero,7 te%&e%3&o3tr0%e which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplatedC E:=F ,bthe b$1$%30%8 o9 0%tere7t7 te7t7 , used as a standard when courts need to balance conflicting social values and individual interests, and re>uires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situationC E:<F and ,c- the 31e$r $%& pre7e%t &$%8er r,1e which rests on the premise that speech may be restrained because there is substantial danger that the speech will li0ely lead to an evil the government has a right to prevent. This rule re>uires that the evil conse>uences sought to be prevented must be substantive, Oe$tremely serious and the degree of imminence e$tremely high.Q EI*F As articulated in our Aurisprudence, we have applied either the &$%8ero,7 te%&e%3- &o3tr0%e or 31e$r $%& pre7e%t &$%8er te7t to resolve free speech challenges. /ore recently, we have concluded that we have generally adhered to the 31e$r $%& pre7e%t &$%8er te7t. EI)F E... &% F C!#: FREED ) F THE PRE## /uch has been written on the philosophical basis of press freedom as part of the larger right of free discussion and e$pression. &ts practical importance, though,

nor is it an Ounbridled license that gives immunity

for every possible use of language and prevents the punishment of those who abuse

is more easily grasped. &t is the chief source of information on current affairs. &t is the most pervasive and perhaps most powerful vehicle of opinion on public >uestions. &t is the instrument by which citizens 0eep their government informed of their needs, their aspirations and their grievances. &t is the sharpest weapon in the fight to 0eep government responsible and efficient. 7ithout a vigilant press, the mista0es of every administration would go uncorrected and its abuses une$posed. As Dustice /alcolm wrote in ;nite" States #) Bustos@
[/+]

Considering that petitioner has argued that respondentsL press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub5specie of content5based ,as distinguished from content5 neutral- regulations. At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a uni>ue tinge to the present challenge, considering that the cases in our Aurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance act1a223 constituted prior restraint. Rather, the determinations were always about whether the restraint was Austified by the Constitution. Je that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. A%& 0% 0t7 $pp103$t0o% 0% o,r D,r07&03t0o%, t6e p$r$meter7 o9 t607 pr0%30p1e 6$=e bee% et36e& o% $ 3$7e;to;3$7e b$707, $1B$-7 te7te& b- 73r,t0%0E0%8 t6e 8o=er%me%t$1 077,$%3e or $3t $8$0%7t t6e 30r3,m7t$%3e7 0% B6036 t6e- oper$te, $%& t6e% &eterm0%0%8 t6e $ppropr0$te te7t B0t6 B6036 to e=$1,$te. Prior restraint refers to official governmental restrictions on the press or other forms of e$pression in advance of actual publication or dissemination. EI(F ?reedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the e$ecutive, legislative or Audicial branch of the government. Thus, it precludes governmental acts that re>uired approval of a proposal to publishC licensing or permits as prere>uisites to publication including the payment of license ta$es for the privilege to publishC and even inAunctions against publication. !ven the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of theirprinting and publication, are deemed as previous restraint or

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. /en in public life may suffer under a hostile and unAust accusationC the wound can be assuaged with the balm of clear conscience. &ts contribution to the public weal ma0es freedom of the press deserving of e$tra protection. &ndeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. 'ersons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials. E.4. A%AT )0 F RE#TR&CT& %#: PR& R RE#TRA&%T, C %TE%T'

%E!TRA" A%D C %TE%T'BA#ED RE$!"AT& %# 'hilippine Aurisprudence, even as early as the period under the )<BI Constitution, has recognized four aspects of freedom of the press. These are ,)freedom from prior restraintC ,;- freedom from punishment subse>uent to publicationC EIBF ,B- freedom of access to informationC EI:F and ,:- freedom of circulation.EIIF

censorship. EINF Any law or official that re>uires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. "iven that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid, EI=F and Oany act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows,Q EI<F it is important to stress not all prior restraints on speech are invalid. Cert$0% pre=0o,7 re7tr$0%t7 m$- be perm0tte& bt6e Co%7t0t,t0o%, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against. 1ence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is ,)- a3o%te%t;%e,tr$1 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 standardsCE(*F or ,;a3o%te%t;b$7e& restraint or censorship, i)e), the
E()F

A governmental regulation is sufficiently Austified if it is within the constitutional power of the "overnment, if it furthers an important or substantial governmental interestC if the governmental interest is unrelated to the suppression of free e$pressionC and if the incident restriction on alleged Efreedom of speech S e$pressionF is no greater than is essential to the furtherance of that interest. E(:F 6n the other hand, a governmental action that restricts freedom of speech or of the press b$7e& o% 3o%te%t is given the 7tr03te7t 73r,t0%- in light of its inherent and invasive impact.6nly when the challenged act has overcome the 31e$r $%& pre7e%t &$%8er r,1e will it pass constitutional muster,E(IF with the government having the burden of overcoming the presumed unconstitutionality. 2nless the government can overthrow this presumption, the 3o%te%t;

b$7e& restraint will be struc0 down.E((F 7ith respect to 3o%te%t;b$7e& restrictions, the government must also show the type of harm the speech sought to be restrained would bring about. especially the gravity and the imminence of the threatened harm U otherwise the prior restraint will be invalid. 'rior restraint on speech based on its content cannot be Austified by hypothetical fears, Obut only by showing a substantive and imminent evil that has ta0en the life of a reality already on ground.Q E(NF As formulated, Othe >uestion in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. &t is a >uestion of pro$imity and degree.QE(=F The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free e$pression. E(<F

restriction is based on the subAect matter of the utterance or speech.

The cast of the

restriction determines the test by which the challenged act is assayed with. 7hen the speech restraints ta0e the form of a 3o%te%t;%e,tr$1 re8,1$t0o%, only a substantial governmental interest is re>uired for its validity.
E(;F

Jecause regulations

of this type are not designed to suppress any particular message, they are not subAect to the strictest form of Audicial scrutiny but an 0%terme&0$te $ppro$36.somewhere between the mere rationality that is re>uired of any other law and the compelling interest standard applied to content5based restrictions. E(BF The te7t is called 0%terme&0$te because the Court will not merely rubberstamp the validity of a law but also re>uire that the restrictions be narrowly5tailored to promote an important or significant governmental interest that is unrelated to the suppression of e$pression. The intermediate approach has been formulated in this manner+

traditional printed matter, broadcasting, film and video have been subAected to Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. invalidated.
EN)F EN*F

regulatory schemes. The dichotomy between print and broadcast media traces its origins in the 2nited States. There, broadcast radio and television have been held to have 10m0te& ?irst Amendment protection,ENIF and 2.S. Courts have eG31,&e& broadcast media from the application of the Ostrict scrutinyQ standard

A restriction that is so broad that it

encompasses more than what is re>uired to satisfy the governmental interest will be The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means underta0en. EN;F Thus, when the prior restraint parta0es of a 3o%te%t;%e,tr$1 re8,1$t0o%, it is subAected to an intermediate review. A 3o%te%t;b$7e& re8,1$t0o%,ENBF however, bears a heavy presumption of invalidity and is measured against the 31e$r $%& pre7e%t &$%8er r,1e. The latter will pass constitutional muster only if Austified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. EN:F Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subAected to the 31e$r $%& pre7e%t &$%8er r,1e, as they are 3o%te%t; b$7e& re7tr03t0o%7. The acts of respondents focused solely on but one obAect.a specific content. fi$ed as these were on the alleged taped conversations between the 'resident and a C6/!9!C official. 2ndoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or e$pression. E./. Dichoto43 o5 Free Press: Print v. Broadcast )edia ?inally, comes respondentsL argument that the challenged act is valid on the ground that broadcast media enAoys free speech rights that are lesser in scope to that of print media. 7e ne$t e$plore and test the validity of this argument, insofar as it has been invo0ed to validate a content5based restriction on broadcast media. !6e re80me7 pre7e%t1- 0% p1$3e 9or e$36 t-pe o9 me&0$ &099er 9rom o%e ot6er. Contrasted with the regime in respect of boo0s, newspapers, magazines and

that they would otherwise apply to content5based restrictions. EN(F According to 2.S. Courts, the t6ree m$Dor re$7o%7 why broadcast media stands apart from print media are+ ,a- the scarcity of the fre>uencies by which the medium operates Ei.e., airwaves are physically limited while print medium may be limitlessFC ENNF ,b- its OpervasivenessQ as a mediumC and ,c- its uni>ue accessibility to children. EN=F Jecause cases involving broadcast media need not follow Oprecisely the same approach that E2.S. courtsF have applied to other media,Q nor go Oso far as to demand that such regulations serve VcompellingL government interests,Q EN<F t6e- $re &e30&e& o% B6et6er t6e I8o=er%me%t$1 re7tr03t0o%J 07 %$rroB1- t$01ore& to 9,rt6er $ 7,b7t$%t0$1 8o=er%me%t$1 0%tere7t,J F8+. or t6e 0%terme&0$te te7t. As pointed out by respondents, 'hilippine Aurisprudence has also echoed a differentiation in treatment between broadcast and print media. Ne=ert6e1e77, $ re=0eB o9 #6010pp0%e 3$7e 1$B o% bro$&3$7t me&0$ B011 76oB t6$tK$7 Be 6$=e &e=0$te& B0t6 t6e Amer03$% 3o%3ept0o% o9 t6e B011 o9 R086t7 F81.K Be 10:eB07e &0& %ot $&opt en 4asse t6e re7tr$0%t7. 6ur cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech ,e)g), obscenity, pornography, seditious and inciting speech-, or is based on a .S. 3o%3ept0o% o9 free speech as it relates to broadcast media, p$rt03,1$r1- $7 to B6036 te7t Bo,1& 8o=er% 3o%te%t;b$7e& pr0or

compelling government interest that also has constitutional protection, such as national security or the electoral process. #econd, regardless of the regulatory schemes that broadcast media is subAected to, the Court has consistently held that the clear and present danger test applies to content5based restrictions on media, without ma0ing a distinction as to traditional print or broadcast media. The distinction between broadcast and traditional print media was first enunciated in 6astern Broa"casting Cor oration 7-?R68 #) -ans,E=;F wherein it was held that OAaBll %orms o% me"ia, whether rint or !roa"cast, are entitle" to the !roa" rotection o% the %ree"om o% s eech an" e* ression clause) The test %or limitations on %ree"om o% e* ression continues to !e the clear an" resent "anger ruleCDE=BF -ans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies e$ercising >uasi5Audicial functions. 'articularly, the Court made a detailed e$position as to what needs be considered in cases involving broadcast media. Thus+E=:F $$$ ,B$$$ $$$

the Phili ines ,;nd !dition, pp. I(<5IN*- Chief Dustice !nri>ue /. ?ernando cites at least nine of our decisions which apply the test. /ore recently, the clear and present danger test was applied in D.J.9. Reyes in behalf of the Anti-Bases Coalition #) Bagatsing. ,:- The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Jroadcasting has to be licensed. Airwave fre>uencies have to be allocated among >ualified users. A broadcast corporation cannot simply appropriate a certain fre>uency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of e$pression clause. 4ecessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Fe"eral Communications Commission #) Paci%ica Foun"ation ,:B= 2.S. N;(-, confronted with a patently offensive and indecent regular radio program, e$plained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free e$pression clause. ?irst, broadcast media have established a uni>uely pervasive presence in the lives of all citizens, /aterial presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uni>uely accessible to children. Joo0stores and motion picture theaters may be prohibited from ma0ing certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uni>uely pervasive presence in the lives of all ?ilipinos. 4ewspapers and current boo0s are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. !ven here, there are low income masses who find the cost of boo0s, newspapers, and magazines

All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and e$pression clause. !6e te7t 9or 10m0t$t0o%7 o% 9ree&om o9 eGpre770o% 3o%t0%,e7 to be t6e 31e$r $%& pre7e%t &$%8er r,1e, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawma0er has a right to prevent, &n his Constitution o%

beyond their humble means. Jasic needs li0e food and shelter perforce enAoy high priorities. 6n 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 &. .s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. 2nli0e readers of the printed wor0, the radio audience has lesser opportunity to cogitate analyze, and reAect the utterance. ,IThe clear and present danger test, therefore, must ta0e the particular circumstances of broadcast media into account. The supervision of radio stations5whether by government or through self5regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for e$istence if broadcasts are limited to bland, obse>uious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. ,(The freedom to comment on public affairs is essential to the vitality of a representative democracy. &n the )<)= case of ;nite" States #) Bustos ,BN 'hil. NB)- this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. /en in public life may suffer under a hostile and an unAust accusationC the wound can be assuaged with the

balm of a clear conscience. A public officer must not be too thin5s0inned with reference to comment upon his official acts. 6nly thus can the intelligence and dignity of the individual be e$alted. ,NJroadcast stations deserve the special protection given to all forms of media by the due process and freedom of e$pression clauses of the Constitution. ECitations omittedF

&t is interesting to note that the Court in -ans adopted the arguments found in 2.S. Aurisprudence to Austify differentiation of treatment ,i)e), the scarcity, pervasiveness and accessibility to children-, b,t o%1- $9ter 3$te8or03$11- &e31$r0%8 t6$t It6e te7t 9or 10m0t$t0o%7 o% 9ree&om o9 eGpre770o% 3o%t0%,e7 to be t6e 31e$r $%& pre7e%t &$%8er r,1e,J 9or $11 9orm7 o9 me&0$, B6et6er pr0%t or bro$&3$7t. &ndeed, a close reading of the above5>uoted provisions would show that the differentiation that the Court in -ans referred to was narrowly restricted to what is otherwise deemed as Ounprotected speechQ , e)g), obscenity, national security, seditious and inciting speech-, or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast fre>uencies, which is absent in print media. Thus, when this Court declared in -ans that the freedom given to broadcast media was Osomewhat lesser in scope than the freedom accorded to newspaper and print media,Q it was not as to what test should be applied, but the conte$t by which re>uirements of licensing, allocation of airwaves, and application of norms to unprotected speech. [6/] &n the same year that the -ans case was decided, it was reiterated in (on$ales #) /atig!ak,E=(F that the test to determine free e$pression challenges was the clear and present danger, again without distinguishing the media. E=NF /atig!ak, strictly spea0ing, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies, E==F the Court concluded its decision with the following o!iter "ictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures+

All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. &t is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unli0e motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will li0ely be among the avid viewers of the programs therein shownT..&t cannot be denied though that the State as arens atriae is called upon to manifest an attitude of caring for the welfare of the young. /ore recently, in resolving a case involving the conduct of e$it polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we un>uestionably adhere to issues that involve freedoms of speech and of the press.E=<F !607 07 %ot to 7,88e7t, 6oBe=er, t6$t t6e 31e$r $%& pre7e%t &$%8er r,1e 6$7 bee% $pp10e& to $11 3$7e7 t6$t 0%=o1=e t6e bro$&3$7t me&0$. The rule applies to all media, including broadcast, but only when the challenged act is a content5based regulation that infringes on free speech, e$pression and the press. &ndeed, in Osmena #) COM616C,[78] which also involved broadcast media, the Court refused to apply the clear and present danger rule to a C6/!9!C regulation of time and manner of advertising of political advertisements because the challenged restriction was content5neutral.E<)F And in a case involving due process and e>ual protection issues, the Court in Telecommunications an" Broa"cast Attorne&s o% the Phili ines #) COM616C[7+] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the mediaLs franchise, without going into which test would apply. That broadcast media is subAect to a regulatory regime absent in print media is observed also in other Aurisdictions, where the statutory regimes in place over

broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As e$plained by a Jritish author+ The re$7o%7 behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their p$rt03,1$r 0mp$3t o% $,&0e%3e7, films, videos and broadcasting re>uire a system of prior restraints, whereas it is now accepted that boo0s and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.E<BF

73r,t0%-, with the 8o=er%me%t 6$=0%8 t6e b,r&e% of 'arenthetically, these Austifications are now the subAect of debate. H07tor03$11-, the scarcity of fre>uencies was thought to provide a rationale. 1owever, 3$b1e $%& 7$te110te te1e=070o%have enormously increased the number of actual and potential channels. D080t$1 te36%o1o8- will further increase the number of channels available. Jut still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a uni>ue impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. &t has been argued further that a significant main threat to free e$pression.in terms of diversity.comes not from government, but from private corporate bodies. These developments show a need for a ree$amination of the traditional notions of the scope and e$tent of broadcast media regulation.
E<:F

overcoming

the

presumed unconstitutionality by the 31e$r $%& pre7e%t &$%8er r,1e. This rule applies e>ually to $11 0inds of media, 0%31,&0%8 bro$&3$7t me&0$. This outlines the pro3e&,r$1 m$p to follow in cases li0e the one at bar as it spells out the following+ ,a- the testC ,b- the presumptionC ,c- the burden of proofC ,dthe party to discharge the burdenC and ,e- the >uantum of evidence necessary. 6n the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. &t appears that the 8re$t e=01 which government wants to prevent is the airing of a tape recording in alleged violation of the anti5wiretapping law. The records of the case at bar, however, are confused and confusing, and respondentsL evidence falls short of satisfying the clear and present danger test. "0r7t1-, the various statements of the 'ress Secretary obfuscate the identity of the voices in the tape recording. Se3o%&1-, the integrity of the taped conversation is also suspect. The 'ress Secretary showed to the public two versions, one supposed to be a OcompleteQ version and the other, an OalteredQ version. !60r&1-, the evidence of the respondents on the whoLs and the howLs of the wiretapping act is ambivalent, especially considering the tapeLs different versions. The identity of the wire5tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. "o,rt61-, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti5wiretapping law. 7e rule that %ot e=er- =0o1$t0o% o9 $ 1$B B011 D,7t09- 7tr$0tD$3:et0%8 t6e

The emergence of digital technology 55 which has led to the convergence of broadcasting, telecommunications and the computer industry 55 has li0ewise led to the >uestion of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment. E<IF &nternet, for e$ample, remains largely unregulated, yet the &nternet and the broadcast media share similarities,
E<(F

and the

rationales used to support broadcast regulation apply e>ually to the &nternet.E<NF Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framewor0 and rationale to Austify the differential treatment. F. The Case At Bar 1aving settled the applicable standard to content5based restrictions on broadcast media, let us go to its application to the case at bar. To speech the 7tr03te7t recapitulate, a governmental action that restricts freedom of or of the press b$7e& o% 3o%te%t is given
E<=F

eGer307e o9 9ree&om o9 7pee36 $%& o9 t6e pre77 . 6ur 1$B7 $re o9 &099ere%t :0%&7 and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a personLs private comfort but does not endanger national security. There are laws of great significance but their violation, b- 0t7e19 $%& B0t6o,t more, cannot support suppression of free speech and free press. &n fine, =0o1$t0o% o9 1$B 07 D,7t $ 9$3tor, a vital one to be sure, which should be

weighed in adAudging whether to restrain freedom of speech and of the press. The tot$10t- o9 t6e 0%D,r0o,7 e99e3t7 of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. &n calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, t6e Co,rt 76o,1& %ot be m070%terprete& $7 &e=$1,0%8 =0o1$t0o%7 o9 1$B. Jy all means, violations of law should be vigorously prosecuted by the State for they breed their own evil conse>uence. Jut to repeat, t6e %ee& to pre=e%t t6e0r =0o1$t0o% 3$%%ot per 7e tr,mp r086t t6e eGer307e bre$36 o9 3$% 9ree 7pee36 $%& 9ree pre77, $ pre9erre& B6o7e

statements at bar are acts that should be struc0 down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of 360110%8 e99e3t of the complained acts on record. The B$r%0%87 given to media 3$me 9rom %o 1e77 the 4TC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Dustice, the alter ego of the !$ecutive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. A9ter t6e B$r%0%87, the 3J' ine$plicably Aoined the 4TC in issuing an ambivalent Doint 'ress Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subAect of misinterpretation. The constitutional imperative for us to stri0e down unconstitutional acts should always be e$ercised with care and in light of the distinct facts of each case. ?or there are no hard and fast rules when it comes to slippery constitutional >uestions, and the limits and construct of relative freedoms are never set in stone. &ssues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. Jut in cases where the challenged acts are patent invasions of a constitutionally protected right, Be 76o,1& be 7B09t in stri0ing them down as nullities per se. A b1oB too 7oo% 7tr,3: 9or 9ree&om 07 pre9erre& t6$% $ b1oB too 1$te. I% <IE/ /HEREO", the petition is GRAN!ED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on Dune =, and )), ;**I warning the media on airing the alleged wiretapped conversation between the 'resident and other personalities, for constituting unconstitutional prior restraint on the e$ercise of freedom of speech and of the press

1e$& to 8re$ter e=017. ?or this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the e$ercise of free speech and free press. There is no showing that the feared violation of the anti5wiretapping law clearly endangers the %$t0o%$1 7e3,r0t- o9 t6e St$te. This is not all the faultline in the stance of the respondents. 7e slide to the issue of whether the mere pre77 7t$teme%t7 of the Secretary of Dustice and of the 4TC in >uestion constitute a form of content5based prior restraint that has transgressed the Constitution. &n resolving this issue, we hold that 0t 07 %ot &e3070=e t6$t t6e pre77 7t$teme%t7 m$&e b- re7po%&e%t7 Bere %ot re&,3e& 0% or 9o11oBe& ,p B0t6 9orm$1 or&er7 or 30r3,1$r7. It 07 7,99030e%t t6$t t6e pre77 7t$teme%t7 Bere m$&e b- re7po%&e%t7 B601e 0% t6e eGer307e o9 t6e0r o99030$1 9,%3t0o%7 . 2ndoubtedly, respondent "onzales made his statements as Secretary of Dustice, while the 4TC issued its statement as the regulatory body of media. A%- $3t &o%e, 7,36 $7 $ 7pee36 ,ttere&, 9or $%& o% be6$19 o9 t6e 8o=er%me%t 0% $% o99030$1 3$p$30t- 07 3o=ere& b- t6e r,1e o% pr0or re7tr$0%t. !6e 3o%3ept o9 $% I$3tJ &oe7 %ot 10m0t 0t7e19 to $3t7 $1re$&- 3o%=erte& to $ 9orm$1 or&er or o99030$1 30r3,1$r. Ot6erB07e, t6e %o% 9orm$10E$t0o% o9 $% $3t 0%to $% o99030$1 or&er or 30r3,1$r B011 re7,1t 0% t6e e$7- 30r3,m=e%t0o% o9 t6e pro60b0t0o% o% pr0or re7tr$0%t. The press

SO ORDERED.

I81e70$ N0 Cr07to =7. Co,rt o9 Appe$17, 259 SCRA 529, G.R. No. 119)*3, 5,1- 2), 199) G.R. No. 119)*3 5,1- 2), 199) IGLESIA NI CRIS!O, ?INC.@, petitioner, vs. !HE HONORABLE CO R! O" A##EALS, BOARD O" RE<IE/ "OR MO<ING #IC! RES AND !ELE<ISION $%& HONORABLE HENRIE!!A S. MENDOZA, respondents. # NO, J.: This is a petition for review of the Decision dated /arch ;:, )<<I of the respondent Court of Appeals affirming the action of the respondent Joard of Review for /oving 'ictures and Television which $5rated the T@ 'rogram %Ang &glesia ni Cristo.% 'etitioner &glesia ni Cristo, a duly organized religious organization, has a television program entitled %Ang &glesia ni Cristo% aired on Channel ; every Saturday and on Channel )B every Sunday. The program presents and propagates petitioner#s religious beliefs, doctrines and practices often times in comparative studies with other religions. Sometime in the months of September, 6ctober and 4ovember )<<; petitioner submitted to the respondent Joard of Review for /oving 'ictures and Television the @TR tapes of its T@ program Series 4os. ))(, ))<, );) and );=. The Joard classified the series as %K% or not for public viewing on the ground that they %offend and constitute an attac0 against other religions which is e$pressly prohibited by law.% 'etitioner pursued two ,;- courses of action against the respondent Joard. 6n 4ovember ;=, )<<;, it appealed to the 6ffice of the 'resident the classification of its T@ Series 4o. );=. &t succeeded in its appeal for on December )=, )<<;, the 6ffice of the 'resident reversed the decision of the respondent Joard. ?orthwith, the Joard allowed Series 4o. );= to be publicly telecast. 6n December ):, )<<;, petitioner also filed against the respondent Joard Civil Case 4o. 5<;5):;=*, with the RTC, 4CR uezon City. 1 'etitioner alleged that the respondent Joard acted without Aurisdiction or with grave abuse of discretion in re>uiring petitioner to submit the @TR tapes of its T@ program and in $5rating them. &t cited its T@ 'rogram Series 4os. ))I, ))<, );) and );=. &n their Answer, respondent Joard invo0ed its power under 'D 4o. )<=( in relation to Article ;*) of the Revised 'enal Code. 6n Danuary :, )<<B, the trial court held a hearing on petitioner#s prayer for a writ of preliminary inAunction. The parties orally argued and then mar0ed their documentary evidence. 'etitioner submitted the following as its e$hibits, #i$.+ ,)- !$hibit %A,% respondent Joard#s @oting Slip for Television showing its September <, )<<; action on petitioner#s Series 4o. ))I as follows+ 2 R!/AR3S+ There are some inconsistencies in the particular program as it is very surprising for this program to show series of Catholic ceremonies and also some religious sects and using it in their discussion about the bible. There are remar0s which are direct criticism which affect other religions.

4eed more opinions for this particular program. 'lease subAect to more opinions. ,;- !$hibit %A5),% respondent Joard#s @oting Slip for Television showing its September )), )<<; subse>uent action on petitioner#s Series 4o. ))I as follows+ 3 R!/AR3S+ This program is criticizing different religions, based on their own interpretation of the Jible. 7e suggest that the program should delve on e$plaining their own faith and beliefs and avoid attac0s on other faith. ,B- !$hibit %J,% respondent Joard#s @oting Slip for Television showing its 6ctober <, )<<; action on petitioner#s Series 4o. ))<, as follows+ ( R!/AR3S+ The &glesia ni Cristo insists on the literal translation of the bible and says that our ,Catholic- veneration of the @irgin /ary is not to be condoned because nowhere it is found in the bible that we should do so. This is intolerance and robs off all sects of freedom of choice, worship and decision. ,:- !$hibit %C,% respondent Joard#s @oting Slip for Television showing its 6ctober ;*, )<<; action on petitioner#s Series 4o. );) as follows+ 5 R!/AR3S+ & refuse to approve the telecast of this episode for reasons of the attac0s, they do on, specifically, the Catholic religion. & refuse to admit that they can tell, dictate any other religion that they are right and the rest are wrong, which they clearly present in this episode. ,I- !$hibit %D,% respondent Joard#s @oting Slip for Television showing its 4ovember ;*, )<<; action on petitioner#s Series 4o. );= as follows+ ) R!/AR3S+ The episode presented criticizes the religious beliefs of the Catholic and 'rotestant#s beliefs. 7e suggest a second review. ,(- !$hibits %!,% %!5),% petitioner#s bloc0 time contract with AJS5CJ4 Jroadcasting Corporation dated September ), )<<;. * ,N- !$hibit %?,% petitioner#s Airtime Contract with &sland Jroadcasting Corporation. 8 ,=- !$hibit %",% letter dated December )=, )<<; of former !$ecutive Secretary !delmiro A. Amante, Sr., addressed for 1enrietta S. /endez reversing the decision of the respondent Joard which $5rated the showing of petitioner#s Series 4o. );<. The letter reads in part+ $$$ $$$ $$$ The television episode in >uestion is protected by the constitutional guarantee of free speech and e$pression under Article &&&, section : of the )<=N Constitution. 7e have viewed a tape of the television episode in >uestion, as well as studied the passages found by /TRCJ to be obAectionable and we find no indication that the episode poses any clear and present danger sufficient to limit the said constitutional guarantee. ,<- !$hibits %1,% %15),% letter dated 4ovember ;(, )<<; of Teofilo C. Ramos, Sr., addressed to 'resident ?idel @. Ramos appealing the action of the respondent Joard $5rating petitioner#s Series 4o. );=. 6n its part, respondent Joard submitted the following e$hibits, #i$.+

,)- !$hibit %),% 'ermit Certificate for Television !$hibition 4o. )I)=) dated December )=, )<<; allowing the showing of Series 4o. );= under parental guidance. ,;- !$hibit %;,% which is !$hibit %"% of petitioner. ,B- !$hibit %B,% letter dated 6ctober );, )<<; of 1enrietta S. /endez, addressed to the Christian !ra Jroadcasting Service which reads in part+ $$$ $$$ $$$ &n the matter of your television show %Ang &glesia ni Cristo% Series 4o. ))<, please be informed that the Joard was constrained to deny your show a permit to e$hibit. The material involved constitute an attac0 against another religion which is e$pressly prohibited by law. Please !e gui"e" in the su!mission o% %uture shows. After evaluating the evidence of the parties, the trial court issued a writ of preliminary inAunction on petitioner#s bond o ')*,***.**. The trial court set the pre5trial of the case and the parties submitted their pre5trial briefs. 9 The pre5trial briefs show that the parties# evidence is basically the evidence they submitted in the hearing of the issue of preliminary inAunction. The trial of the case was set and reset several times as the parties tried to reach an amicable accord. Their efforts failed and the records show that after submission of memoranda, the trial court rendered a Dudgment, 1+ on December )I, )<<B, the dispositive portion of which reads+ $$$ $$$ $$$ 71!R!?6R!, Audgment is hereby rendered ordering respondent Joard of Review for /oving 'ictures and Television ,JR/'T- to grant petitioner &glesia ni Cristo the necessary permit for all the series of %Ang &glesia ni Cristo% program. 'etitioner &glesia ni Cristo, however, is directed to refrain from offending and attac0ing other e$isting religions in showing %Ang &glesia ni Cristo% program. S6 6RD!R!D. 'etitioner moved for reconsideration 11 praying+ ,a- for the deletion of the second paragraph of the dispositive portion of the Decision, and ,b- for the Joard to be perpetually enAoined from re>uiring petitioner to submit for review the tapes of its program. The respondent Joard opposed the motion. 12 6n /arch N, )<<B, the trial court granted petitioner#s /otion for Reconsideration. &t ordered+ 13 $$$ $$$ $$$ 71!R!?6R!, the /otion for Reconsideration is granted. The second portion of the Court#s 6rder dated December )I, )<<B, directing petitioner to refrain from offending and attac0ing other e$isting religions in showing %Ang &glesia ni Cristo% program is hereby deleted and set aside. Respondents are further prohibited from re>uiring petitioner &glesia ni Cristo to submit for review @TR tapes of its religious program %Ang &glesia ni Cristo.% Respondent Joard appealed to the Court of Appeals after its motion for reconsideration was denied. 1( 6n /arch I, )<<I, the respondent Court of Appeals 15 reversed the trial court. &t ruled that+ ,)- the respondent board has Aurisdiction and power to review the T@ program %Ang &glesia ni Cristo,% and ,;- the respondent Joard did not act with grave abuse of discretion when it denied permit for the e$hibition on T@ of the three series of %Ang &glesia ni Cristo% on the ground that the materials constitute an attac0

against another religion. &t also found the series %indecent, contrary to law and contrary to good customs. &n this petition for review on certiorari under Rule :I, petitioner raises the following issues+ & 71!T1!R 6R 46T T1! 1646RAJ9! C62RT 6? A''!A9S !RR!D &4 169D&4" T1AT T1! %A4" &"9!S&A 4& CR&ST6% 'R6"RA/ &S 46T C64ST&T2T&64A99H 'R6T!CT!D AS A ?6R/ 6? R!9&"&62S !K!RC&S! A4D !K'R!SS&64. && 71!T1!R 6R 46T T1! 1646RAJ9! C62RT 6? A''!A9S !RR!D &4 46T 169D&4" T1AT J!&4" A4 !K!RC&S! 6? R!9&"&62S ?R!!D6/, T1! %A4" &"9!S&A 4& CR&ST6% 'R6"RA/ &S S2JD!CT T6 T1! '69&C! '67!R 6? T1! STAT! 649H &4 T1! !KTR!/! CAS! T1AT &T '6S!S A C9!AR A4D 'R!S!4T DA4"!R. &&& 71!T1!R 6R 46T T1! 1646RAJ9! C62RT 6? A''!A9S !RR!D &4 169D&4" T1AT T1! /TRCJ &S @!ST!D 7&T1 T1! '67!R T6 C!4S6R R!9&"&62S 'R6"RA/S. &@ 71!T1!R 6R 46T T1! 1646RAJ9! C62RT 6? A''!A9S !RR!D &4 169D&4" T1AT T1! %A4" &"9!S&A 4& CR&ST6,% A '2R!9H R!9&"&62S 'R6"RA/ &S &4D!C!4T A4D C64TRARH T6 9A7 A4D "66D C2ST6/S. The basic issues can be reduced into two+ ,)- first, whether the respondent Joard has the power to review petitioner#s T@ program %Ang &glesia ni Cristo,% and ,;- second, assuming it has the power, whether it gravely abused its discretion when it prohibited the airing of petitioner#s religious program, series 4os. ))I, ))< and );), for the reason that they constitute an attac0 against other religions and that they are indecent, contrary to law and good customs. The first issue can be resolved by e$amining the powers of the Joard under 'D 4o. )<=(. &ts section B pertinently provides+ Sec. B Powers an" Functions. 55 The J6ARD shall have the following functions, powers and duties+ $$$ $$$ $$$ b- To screen, review and e$amine all motion pictures as herein defined, tele#ision rograms, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non5 theatrical distribution for television broadcast or for general viewing, imported or produced in the 'hilippines and in the latter case, whether they be for local viewing or for e$port. c- To a ro#e, "elete obAectionable portion from andPor rohi!itthe importation, e$portation, production, copying, distribution, sale, lease, e*hi!ition an"Eor tele#ision !roa"cast of the motion pictures, tele#ision rograms and publicity materials, subAect of the preceding paragraph, which, in the Audgment of the J6ARD applying contemporary ?ilipino cultural values as standard, are obAectionable for

being immoral, in"ecent, contrar& to lawandPor good customs, inAurious to the prestige of the Republic of the 'hilippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime, such as but not limited to+ i- Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise threaten the economic andPor political stability of the StateC ii- Those which tend to undermine the faith and confidence of the people, their government andPor duly constituted authoritiesC iii- Those which glorify criminals or condone crimesC iv- Those which serve no other purpose but to satisfy the mar0et for violence or pornographyC v- Those which tend to abet the traffic in and use of prohibited drugsC vi- Those which are libelous or defamatory to the good name and reputation of any person, whether living or deadC vii- Those which may constitute contempt of court or of any 5uasi-9u"icial tri!unal, or pertain to matters which are subAudice in nature ,emphasis ours-. The law gives the Joard the power to screen, review and e$amine all % tele#ision rograms.% Jy the clear terms of the law, the Joard has the power to %approve, delete . . . andPor prohibit the . . . e$hibition andPor television broadcast of . . . television programs . . .% The law also directs the Joard to apply %contemporary ?ilipino cultural values as standard% to determine those which are obAectionable for being %immoral, indecent, contrary to law andPor good customs, inAurious to the prestige of the Republic of the 'hilippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime.% 'etitioner contends that the term %television program% should not include religious programs li0e its program %Ang &glesia ni Cristo.% A contrary interpretation, it is urged, will contravene section I, Article &&& of the Constitution which guarantees that %no law shall be made respecting an establishment of religion, or prohibiting the free e$ercise thereof. The free e$ercise and enAoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.% 7e reAect petitioner#s submission which need not set us adrift in a constitutional voyage towards an uncharted sea. ?reedom of religion has been accorded a re%erre" status by the framers of our fundamental laws, past and present. 7e have affirmed this preferred status well aware that it is %designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good.% 1) 7e have also laboriously defined in our Aurisprudence the intersecting umbras and penumbras of the right to religious profession and worship. To >uote the summation of /r. Dustice &sagani Cruz, our well50nown constitutionalist+ 1* Religious Pro%ession an" 0orshi The right to religious profession and worship has a two5fold aspect, #i$., freedom to believe and freedom to act on one#s beliefs. The first is absolute as long as the belief is confined within the realm of thought. The secon" is su!9ect to regulation where the !elie% is translate" into e*ternal acts that a%%ect the u!lic wel%are . ,)- Free"om to Belie#e

The individual is free to believe ,or disbelieve- as he pleases concerning the hereafter. 1e may indulge his own theories about life and deathC worship any god he chooses, or none at allC embrace or reAect any religionC ac0nowledge the divinity of "od or of any being that appeals to his reverenceC recognize or deny the immortality of his soul 55 in fact, cherish any religious conviction as he and he alone sees fit. 1owever absurd his beliefs may be to others, even if they be hostile and heretical to the maAority, he has full freedom to believe as he pleases. 1e may not be re>uired to prove his beliefs. 1e may not be punished for his inability to do so. Religion, after all, is a matter of faith. %/en may believe what they cannot prove.% !very one has a right to his beliefs and he may not be called to account because he cannot prove what he believes. ,;- Free"om to Act on One,s Belie%s But where the in"i#i"ual e*ternali$es his !elie%s in acts or omissions that a%%ect the u!lic, his %ree"om to "o so !ecomes su!9ect to the authorit& o% the State . As great as this liberty may be, religious freedom, li0e all the other rights guaranteed in the Constitution, can be enAoyed only with a proper regard for the rights of others. It is error to think that the mere in#ocation o% religious %ree"om will stalemate the State an" ren"er it im otent in rotecting the general wel%are . The inherent police power can be e$ercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable re>uirements or prohibitions of the law. Dustice ?ran0furter put it succinctly+ %The constitutional provision on religious freedom terminated disabilities, it did not create new privileges. &t gave religious liberty, not civil immunity. Its essence is %ree"om %rom con%ormit& to religious "ogma, not %ree"om %rom con%ormit& to law !ecause o% religious "ogma. Accordingly, while one has lull freedom to believe in Satan, he may not offer the obAect of his piety a human sacrifice, as this would be murder. Those who literally interpret the Jiblical command to %go forth and multiply% are nevertheless not allowed to contract plural marriages in violation of the laws against bigamy. A person cannot refuse to pay ta$es on the ground that it would be against his religious tenets to recognize any authority e$cept that of "od alone. An atheist cannot e$press in his disbelief in act of derision that wound the feelings of the faithful. The police power can validly asserted against the &ndian practice of the suttee, born of deep religious conviction, that calls on the widow to immolate herself at the funeral pile of her husband. 7e thus reAect petitioner#s postulate that its religious program is er se beyond review by the respondent Joard. &ts public broadcast on T@ of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the e$ercise 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 laisse$ %aire policy on the e$ercise 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. 6ur 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. !ven now, we have yet to settle the near century old strife in /indanao, the roots of which have been nourished by the mistrust and misunderstanding between our Christian and /uslim brothers and sisters. The bewildering rise of weird religious cults espousing violence as an article of faith also proves the wisdom of our rule reAecting a strict let alone policy on the e$ercise of religion. For sure, we shall continue to su!9ect an& act inching the s ace %or the %ree e*ercise o% religion to a heightene" scrutin& !ut we shall not lea#e its rational e*ercise to the irrationalit& o% man) For when religion "i#i"es an" its e*ercise "estro&s, the State shoul" not stan" still. &t is also petitioner#s submission that the respondent appellate court gravely erred when it affirmed the ruling of the respondent Joard $5rating its T@ 'rogram Series 4os. ))I, ))<, );) and );=. The records show that the respondent Joard disallowed the program series for %attac0ing% other religions. Thus, !$hibits %A,% %A5),% ,respondent Joard#s @oting Slip for Television- reveal that its reviewing members $5 rated Series ))I for %. . . criticizing different religions, based on their own interpretation of the Jible.% They suggested that the program should only e$plain petitioner#s %. . . own faith and beliefs and avoid attac0s on other faiths.% !$hibit %J% shows that Series 4o. ))< was $5rated because %the &glesia ni Cristo insists on the literal translation of the bible and says that our Catholic veneration of the @irgin /ary is not to be condoned because nowhere it is found in the bible that we should do so. This is intolerance . . .% !$hibit %C% shows that Series 4o. );) was $5rated %. . . for reasons of the attac0s, they do on, specifically, the Catholic religion. . . . ,T-hey can not tell, dictate any other religion that they are right and the rest are wrong . . .% !$hibit %D% also shows that Series 4o. );= was not favorably recommended because it %. . . outrages Catholic and 'rotestant#s beliefs.% 6n second review, it was $5rated because of its %unbalanced interpretations of some parts of the bible.% 18 &n sum, the respondent Joard $5rated petitioner#s T@ program series 4os. ))I, ))<, );) and );= because of petitioner#s controversial biblical interpretations and its %attac0s% against contrary religious beliefs. The respondent appellate court agreed and even held that the said %attac0s% are indecent, contrary to law and good customs. 7e reverse the ruling of the appellate court. First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech. 1ence, any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. 19 &t is the burden of the respondent Joard to overthrow this presumption. &f it fails to discharge this burden, its act of censorship will be struc0 down. &t failed in the case at bar. Secon". The evidence shows that the respondent Joard $5rated petitioners T@ series for %attac0ing% either religions, especially the Catholic church. An e$amination of the evidence, especially !$hibits %A,% %A5),% %J,% %C,% and %D% will show that the so5called %attac0s% are mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were not presented as evidence. Het they were considered by the respondent court as

indecent, contrary to law and good customs, hence, can be prohibited from public viewing under section B,c- of 'D )<=(. This ruling clearly suppresses petitioner#s freedom of speech and interferes with its right to free e$ercise of religion. &t misappreciates the essence of freedom to differ as delineated in the benchmar0 case of Cantwell #.Connecticut, so #i$.+ 2+ $$$ $$$ $$$ &n the realm of religious faith, and in that of political belief, sharp differences arise. &n both fields, the tenets of one man may seem the ran0est error to his neighbor. To persuade others to his own point of view, the pleader, as we 0now, at times, resorts to e$aggeration, to vilification of men who have been, or are prominent in church or state or even to false statements. Jut the people of this nation have ordained in the light of history that inspite of the probability of e$cesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of democracy. The respondent Joard may disagree with the criticisms of other religions by petitioner but that gives it no e$cuse to interdict such criticisms, however, unclean they may be. 2nder our constitutional scheme, it is not the tas0 of the State to favor any religion by protecting it against an attac0 by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. 2is-a-#isreligious differences, the State enAoys no ban>uet of options. 4eutrality alone is its fi$ed and immovable stance. &n fine, respondent board cannot s>uelch the speech of petitioner &glesia ni Cristo simply because it attac0s other religions, even if said religion happens to be the most numerous church in our country. &n a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedroc0 of freedom of religion is freedom of thought and it is best served by encouraging the mar0etplace of dueling ideas. 7hen the lu$ury of time permits, the mar0etplace of ideas demands that speech should be met by more speech for it is the spar0 of opposite speech, the heat of colliding ideas that can fan the embers of truth. Thir". The respondents cannot also rely on the ground %attac0s against another religion% in $5rating the religious program of petitioner. !ven a sideglance at section B of 'D 4o. )<=( will reveal that it is not among the grounds to Austify an order prohibiting the broadcast of petitioner#s television program. The ground %attac0 against another religion% was merely added by the respondent Joard in its Rules. 21 This rule is void for it runs smac0 against the hoary doctrine that administrative rules and regulations cannot e$pand the letter and spirit of the law they see0 to enforce. &t is opined that the respondent board can still utilize% attac0 against any religion% as a ground allegedly %. . . because section B ,c- of 'D 4o. )<=( prohibits the showing of motion pictures, television programs and publicity materials which are contrary to law and Article ;*) ,;- ,b- ,B- of the Revised 'enal Code punishes anyone who e$hibits %shows which o%%en" any race or religion.% 7e respectfully disagree for it is plain that the word %attac0% is not synonymous with the word %offend.% /oreover, Article ;*) ,;- ,b- ,B- of the Revised 'enal Code should be invo0ed to Austify

the su!se5uent unishment of a show which offends any religion. &t cannot be utilized to Austify rior censorshi of speech. &t must be emphasized that !.6. =N(, the law prior to 'D )<=(, included %attac0 against any religion% as a ground for censorship. The ground was not, however, carried over by 'D )<=(. &ts deletion is a decree to disuse it. There can be no other intent. &ndeed, even the !$ecutive Department espouses this view. Thus, in an 6pinion dated 4ovember ;=, )<=I then /inister of Dustice, now 'resident of the Senate, 4eptali "onzales e$plained+ $$$ $$$ $$$ 1owever, the >uestion whether the JR/'T ,now /TRCJ- may preview and censor the subAect television program of &4C should be viewed in the light of the provision of Section B, paragraph ,c- of 'D )<=(, which is substantially the same as the provision of Section B, paragraph ,c- of !.6. 4o. =N(5A, which prescribes the standards of censorship, to wit+ %immoral, indecent, contrary to law andPor good customs, inAurious to the prestige of the Republic of the 'hilippines or its people or with dangerous tendency to encourage the commission of violence, or of a wrong% as determined by the Joard, %applying contemporary ?ilipino cultural values as standard.% As stated, the intention of the Joard to subAect the &4C#s television program to %previewing and censorship is prompted by the fact that its religious program ma0es mention of beliefs and practices of other religion.% On the %ace o% the law itsel%, there can concei#a!l& !e no !asis %or censorshi o% sai" rogram !& the Boar" as much as the allege" reason cite" !& the Boar" "oes not a ear to he within the contem lation o% the stan"ar"s o% censorshi set !& law . ,!mphasis supplied-. Fourth. &n $5rating the T@ program of the petitioner, the res on"ents %aile" to a l& the clear an" resent "anger rule. &n American Bi!le Societ& #. Cit& o% Manila, 22 this Court held+ %The constitutional guaranty of free e$ercise and enAoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can be Austified li0e other restraints on freedom of e$pression on the ground that there is a clear an" resent "anger of any substantive evil which the State has the right to prevent.% &n 2ictoriano #s. 6li$al"e Ro e 0orkers ;nion, 23 we further ruled that %. . . it is only where it is unavoidably necessary to prevent an imme"iate an" gra#e "anger to the security and welfare of the community that infringement of religious freedom may be Austified, an" onl& to the smallest e*tent necessar& to a#oi" the "anger.% The records show that the decision of the respondent Joard, affirmed by the respondent appellate court, is completely !ere%t o% %in"ings o% %acts to Austify theconclusion that the subAect video tapes constitute impermissible attac0s against another religion. There is no showing whatsoever of the t& e o% harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on s eech, inclu"ing religious s eech, cannot !e 9usti%ie" !& h& othetical %ears !ut onl& !& the showing o% a su!stanti#e an" imminent e#il which has taken the li%e o% a realit& alrea"& on groun". &t is suggested that we re5e$amine the application of clear and present danger rule to the case at bar. &n the 2nited States, it is true that the clear and present danger test has undergone permutations. &t was /r. Dustice 1olmes who formulated the test in

Schenc0 v. 2S, 2( as follows+ %. . . the >uestion in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear an" resent "anger that they will bring about the substantive evils that Congress has a right to prevent.% Admittedly, the test was originally designed to determine the latitude which should be given to speech that espouses anti-go#ernment action. Jannered by Dustices 1olmes and Jrandeis, the test attained its full flowering in the decade of the forties, when its umbrella was used to protect speech other than su!#ersi#e s eech. 25 Thus, for instance, the test was applied to annul a total ban on labor pic0eting. 2) The use of the test too0 a downswing in the )<I*#s when the 2S Supreme Court decided -ennis #. ;nite" States involving communist conspiracy. 2* &n Dennis, the components of the test were altered as the 1igh Court adopted Dudge 9earned 1and#s formulation that %. . . in each case EcourtsF must as0 whether the gravity of the #evil,# discounted by its improbability, Austifies such invasion of free speech as is necessary to avoid the danger.% The imminence re>uirement of the test was thus diminished and to that e$tent, the protection of the rule was wea0ened. &n )<(<, however, the strength of the test was reinstated in Jrandenburg v. 6hio, 28 when the 1igh Court restored in the test the imminence re>uirement, and even added an intent re>uirement which according to a noted commentator ensured that only speech directed at inciting lawlessness could be punished. 29 Presentl& in the 2nited States, the clear and present danger test is not a lie" to protect low #alue s eeches such as obscene speech, commercial speech and defamation. Je that as it may, the test is still a lie" to %our t& es o% s eech + speech that advocates dangerous ideas, speech that provo0es a hostile audience reaction, out of court contempt and release of information that endangers a fair trial. 3+ 1ence, even following the drift of American Aurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speech that attac0s other religions and could readily provo0e hostile audience reaction. It cannot !e "ou!te" that religious truths "istur! an" "istur! tenri!l& . &t is also opined that it is inappropriate to apply the clear and present danger test to the case at bar because the issue involves the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal connection between the speech and the evil apprehended cannot be established. The contention overloo0s the fact that the case at bar involves videotapes that are re-ta e" and hence, their speech content is 0nown and not an K >uantity. "iven the specific content of the speech, it is not unreasonable to assume that the respondent Joard, with its e$pertise, can determine whether its sulphur will bring about the substantive evil feared by the law. ?inally, it is also opined by /r. Dustice 3apunan that %. . . the determination of the >uestion as to whether or not such vilification, e$aggeration or fabrication falls within or lies outside the boundaries of protected speech or e$pression is a 9u"icial %unction which cannot be arrogated by an administrative body such as a Joard of Censors.% 1e submits that a %system of prior restraint may onl& be validly administered by 9u"ges and not left to administrative agencies. %The same submission is made by /r. Dustice /endoza. This thoughtful thesis is an attempt to transplant another American rule in our Aurisdiction. &ts seedbed was laid down by /r. Dustice Jrennan in his concurring

opinion in the )<(; case of Manual 6nter rise #. -a& 31 Jy )<(I, the 2S Supreme Court in Free"man #. Mar&lan" 32 was ready to hold that %the teaching of cases is that, because onl& a 9u"icial "etermination in an adversary proceeding ensures the necessary sensitivity to freedom of e$pression only a procedure re>uiring a Audicial determination suffices to impose a valid final restraint.% 33 7hile the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for Congress to grant an administrative body 5uasi-9u"icial power to preview and classify T@ programs and enforce its decision su!9ect to re#iew !& our courts. As far bac0 as )<;), we upheld this set5up in Sotto #s. Rui$, 3( #i$.+ The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. 'ersons posses no absolute right to put into the mail anything they please, regardless of its character. 6n the other hand, the e$clusion of newspaper and other publications from the mails, in the e$ercise of e$ecutive power, is e$tremely delicate in nature and can only be Austified where the statute is une>uivocably applicable to the supposed obAectionable publication. &n e$cluding any publication for the mails, the obAect should be not to interfere with the freedom of the press or with any other fundamental right of the people. This is the more true with reference to articles supposedly libelous than to other particulars of the law, since whether an article is or is not libelous, is fundamentally a legal >uestion. In or"er %or there to !e "ue rocess o% law, the action o% the -irector o% Posts must !e su!9ect to re#ision !& the courts in case he ha" a!use" his "iscretion or e*cee"e" his authorit&. ,6* arte Dac0son E)=N=F, <( 2.S., N;NC Pu!lic Cleaning 3ouse #s. Co&ne E)<*BF, )<: 2.S., :<NC Post Pu!lishing Co. #s. Murra& E)<)(F. ;B 5 ?ed., NNBAs has !een sai", the er%ormance o% the "ut& o% "etermining whether a u!lication contains rinte" matter o% a li!elous character rests with the -irector o% Posts an" in#ol#es the e*ercise o% his 9u"gment an" "iscretion . !very intendment of the law is in favor of the correctness of his action. The rule is ,and we go only to those cases coming from the 2nited States Supreme Court and pertaining to the 2nited States 'ostmaster5"eneral-, that the courts will not interfere with the decision of the Director of 'osts unless clearly of opinion that it was wrong. ,Jates S "uilid Co. vs. 'ayne E)<*:F, )<: 2.S., )*(C Smith vs. 1itchcoc0 E)<);F, ;;( 2.S., (BC /asses 'ub. Co. vs. 'atten E)<)NF, ;:( ?ed., ;:. Jut see David vs. Jrown E)<**F, )*B ?ed., <*<, announcing a somewhat different doctrine and relied upon by the Attorney5"eneral-. To be sure, legal scholars in the 2nited States are still debating the proposition whether or not courts alone are competent to decide whether speech is constitutionally protected. 35 The issue involves highly arguable policy considerations and can be better addressed by our legislators. &4 @&!7 71!R!6?, the Decision of the respondent Court of Appeals dated /arch ;:, )<<I is affirmed insofar as it sustained the Aurisdiction of the respondent /TRCJ to review petitioner#s T@ program entitled %Ang &glesia ni Cristo,% and is reversed and set aside insofar as it sustained the action of the respondent /TRCJ $5 rating petitioner#s T@ 'rogram Series 4os. ))I, ))<, and );). 4o costs. S6 6RD!R!D.

G.R. No. 1(85*9

"ebr,$r- 5, 2++* INC., 'etitioner, AND CLASSI"ICA!ION

'etitioner then filed with the CA a petition for certiorari which was dismissed in the now assailed Dune )=, ;**) decision. The Danuary N, ;*** suspension order issued by /TRCJ was affirmed in toto. 1ence, this recourse. The pivotal issues for our resolution are+ ,)- whether the /TRCJ has the power or authority to review the show %/uro Ami+ The /a0ing% prior to its broadcast by television and ,;- whether /emorandum Circular 4o. <=5)N was enforceable and binding on petitioner. ?irst, Section B of 'D )<=(I empowers the /TRCJ to screen, review and e$amine all motion pictures, television programs including publicity materials. This power of prior review is highlighted in its Rules and Regulations, particularly Section N thereof, which reads+ S!CT&64 N. R! 2&R!/!4T 6? 'R&6R R!@&!7. 55 4o motion picture, television program or related publicity material shall be imported, e$ported, produced, copied, distributed, sold, leased, e$hibited or broadcasted by television without prior permit issued by the J6ARD after review of the motion picture, television program or publicity material. The onl& e$emptions from the /TRCJLs power of review are those e$pressly mentioned in Section N,( such as ,)- television programs imprinted or e$hibited by the 'hilippine "overnment andPor departments and agencies, and ,;- newsreels. According to the CA, the subAect program was a publicity for the movie, %/uro Ami.% &n adopting this finding, we hold that %/uro Ami+ The /a0ing,% did not fall under any of the e$emptions and was therefore within the power of review of /TRCJ. 6n the other hand, petitioner claims that %/uro Ami+ The /a0ing% was a u!lic a%%airs program.N !ven if that were so, our resolution of this issue would not change. This Court has already ruled that a public affairs program 55 described as a variety of news treatmentC a cross between pure television news and news5related commentaries, analysis andPor e$change of opinions 55 is within the /TRCJLs power of review.= Clearly, %/uro Ami+ The /a0ing% ,which petitioner claims to be a public affairs program- was well within the purview of /TRCJLs power of prior review.<aw hi<)net

GMA NE!/OR', vs. MO<IE AND !ELE<ISION RE<IE/ BOARD, Respondent. DECISION CORONA, J.:

SubAect of this petition for review under Rule :I of the Rules of Court is the Dune )=, ;**) decision) of the Court of Appeals ,CA- affirming the Danuary N, ;*** order ; of respondent /ovie and Television Review and Classification Joard ,/TRCJ- which read+ &n view thereof, the J6ARD, by the undersigned, hereby imposes the administrative penalty of S2S'!4S&64 ?R6/ A&R&4"PJR6ADCAST&4" any program on !/C Channel ;N for a period of seven ,N- days which period shall commence immediately upon receipt of this 6rder. Hour failure to comply with this 6RD!R shall be construed by the J6ARD as defiance on your part of a lawful order of the J6ARD. The facts follow. 'etitioner "/A 4etwor0, &nc. operates and manages the 21? television station, !/C Channel ;N. 6n Danuary N, ;***, respondent /TRCJ issued an order of suspension against petitioner for airing %/uro Ami+ The /a0ing% without first securing a permit from it as provided in Section N of 'D )<=(.B The penalty of suspension was based on /emorandum Circular <=5)N dated December )I, )<<=: which provided for the penalties for e$hibiting a program without a valid permit from the /TRCJ. 'etitioner moved for reconsideration of the suspension order and, at the same time, informed /TRCJ that Channel ;N had complied with the suspension order by going off the air since midnight of Danuary )), ;***. &t also filed a letter5protest which was merely %noted% by the /TRCJ thereby, in effect, denying both the motion for reconsideration and letter5protest.

1owever, while /TRCJ had Aurisdiction over the subAect program, /emorandum Circular <=5)N, which was the basis of the suspension order, was not binding on petitioner. The Administrative Code of )<=N, particularly Section B thereof, e$pressly re>uires each agency to file with the 6ffice of the 4ational Administrative Register ,64AR- of the 2niversity of the 'hilippines 9aw Center three certified copies of every rule adopted by it. Administrative issuances which are not published or filed with the 64AR are ineffective and may not be enforced. < /emorandum Circular 4o. <=5)N, which provides for the penalties for the first, second and third offenses for e$hibiting programs without valid permit to e$hibit, has not been registered with the 64AR as of Danuary ;N, ;***. )* 1ence, the same is yet to be effective.)) &t is thus unenforceable since it has not been filed in the 64AR.); Conse>uently, petitioner was not bound by said circular and should not have been meted the sanction provided thereunder. /HERE"ORE, the instant petition is #AR!IALL2 GRAN!ED. The decision of the Court of Appeals dated Dune )=, ;**), insofar as it affirmed the public respondent /ovie and Television Review and Classification JoardLs Aurisdiction over %/uro Ami+ The /a0ing,% is hereby A""IRMED B0t6 t6e MODI"ICA!ION that the suspension order issued against petitioner "/A 4etwor0, &nc. pursuant to /emorandum Circular 4o. <=5)N is hereby declared null and void. 4o pronouncement as to costs. SO ORDERED.

Surveys affecting national candidates shall not be published fifteen ,)Idays before an election and surveys affecting local candidates shall not be published seven ,N- days be5 fore an election. 'etitioner S7S 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. 'etitioner 3amahalan 'ublishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on /ay ):,;**). 'etitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the e$ercise of freedom of speech without any clear and present danger to Austify such restraint. They claim that S7S and other pollsters conducted and published the results of surveys prior to the )<<;, )<<I, and )<<= elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from e$plaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Conse>uently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively obAective. <=w hi<)n>t Respondent Commission on !lections Austifies the restrictions in RI.: of R.A. 4o. <**( as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys Aust before the election. &t contends that ,)the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the obAective of the law, i)e), the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of replyC ,;- it is narrowly tailored to meet the %evils% sought to be preventedC and ,B- the impairment of freedom of e$pression is minimal, the restriction being limited both in duration, i)e), the last )I days before the national election and the last N days before a local election, and in scope as it does not prohibit election survey results but only re>uire timeliness. Respondent claims that in National Press Clu! #) COM616C,) a total ban on political advertisements, with candidates being merely allocated broadcast time during the so5 called C6/!9!C space or C6/!9!C hour, was upheld by this Court. &n contrast, according to respondent, it states that the prohibition in RI.: of RA. 4o. <**( is much more limited. ?or reasons hereunder given, we hold that RI.: of R.A. 4o. <**( constitutes an unconstitutional abridgment of freedom of speech, e$pression, and the press.

G.R. No. 1(*5*1

M$- 5, 2++1

SOCIAL /EA!HER S!A!IONS, INCOR#ORA!ED $%& 'AMAHALAN # BLISHING COR#ORA!ION, &o0%8 b,70%e77 $7 MANILA S!ANDARD , petitioners, vs. COMMISSION ON ELEC!IONS, respondent. MENDOZA, J.H 'etitioner, Social 7eather Stations, &nc. ,S7S-, is a private non5stoc0, non5profit 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. 6n the other hand, petitioner 3amahalan 'ublishing Corporation publishes the Manila Stan"ar", a newspaper of general circulation, which features news5 worthy items of information including election surveys. <=w hi<)n>t 'etitioners brought this action for prohibition to enAoin the Commission on !lections from enforcing RI.: of RA. 4o.<**( ,?air !lection Act-, which provides+ Surveys affecting national candidates shall not be published fifteen ,)Idays before an election and surveys affecting local candidates shall not be published seven ,N- days be5 fore an election. The term %election surveys% is defined in RI.) of the law as follows+ !lection surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate#s popularity, >ualifications, 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 RI.:, Resolution B(B(, R;:,h-, dated /arch &, ;**), of the C6/!9!C enAoins U

To be sure, RI.:&ays a prior restraint on freedom of speech, e$pression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen ,)I- days immediately preceding a national election seven ,N- days before a local election. Jecause of tile preferred status of tile constitutional rights of speech, e$pression, and he press, such a measure is vitiated by a weighty presumption of invalidity. ; &ndeed, any system of prior restraints of e$pression comes to this Court bearing a heavy 'resumption against its constitutional validity. ...The "overnment thus carries a heavy burden of showing Austification for in enforcement of such restraint. %#B There, thus a reversal of the normal presumption of validity that inheres in every legislation. 4or may it be argued that because of Art. &K5C, R: of the Constitution, which gives the C6/!9!C supervisory power to regulate the enAoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure li0e RI.:. ?or as we have pointed out in sustaining tile ban on media political advertisements, the grant of power to the C6/!9!C under Art. &K5 C, R: is limited to ensuring %e>ual opportunity, time, space, and the right to reply% as well as uniform and reasonable rates of charges for the use of such media facilities %public information campaigns and forums among candidates.%: This Court stated+ The technical effect of Article &K ,C- ,:- of the Constitution may be seen to be that no presumption of invalidity arises in respect of e$ercises of supervisory or regulatory authority on the part of the Comelec for the 'urpose of securing e>ual 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.I /R D2ST&C! 3A'24A4 dissents. 1e reAects as inappropriate the test of clear and present danger for determining the validity of RI.:. &ndeed, as has been pointed out in Osme:a #) COM616C,( this test was originally formulated for the criminal law and only later appropriated for free speech cases. 1ence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it ma& not !e ade>uate for such regulations as the one in >uestion. ?or such a test is concerned with >uestions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of RI.: and similar regulations. &nstead, /R D2ST&C! 3A'24A4 purports to engage in a form of balancing by %weighing and balancing the circumstances to determine whether public interest Ein free, orderly, honest, peaceful and credible electionsF is served by the regulation of the free enAoyment of the rights% ,page N-. After canvassing the reasons for the prohibition, i)e., to prevent last5minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the Aun0ing% of wea0 and %losing% candidates by their parties, and the form of election cheating called %dagdag5bawas% and invo0ing the State#s power to supervise media of information during the election period ,pages ))5)(8, the dissenting opinion simply concludes+

@iewed in the light of the legitimate and significant obAectives of Section I.:, &t may be seen that its limitingimpact on the rights of free speech and of the press is not unduly repressive or unreasonable. &n &ndeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. &t is limited in durationC 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. ,'ages )N5)=The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of e$pression. &nstead, reliance is placed on Art. &K5 C, R:. As already stated, the purpose of Art. &K5C, R: is to %ensure e>ual opportunity, time, and space and the right of reply, including reasonable, e>ual rates therefor for public information campaigns and forums among candidates. % 1ence the validity of the ban on media advertising. &t is noteworthy that R.A. 4o. <**(, R ): has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. &ndeed, to sustain the ban on the publication of survey results would sanction the censorship of all spea0ing by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. &n sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, e$pression, and the press with little protection. ?or anyone who can bring a plausible Austification forward can easily show a rational connection between the statute and a legitimate governmental purpose. &n contrast, the balancing of interest underta0en by then Dustice Castro in (on$ales v. COM616C,F from which the dissent in this case ta0es its cue, was a strong one resulting in his conclusion that , RI*5J of R.A. 4o. :==*, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of e$pression. 4or can the ban on election surveys be Austified on the ground that there are other countries 5 N=, according to the Solicitor "eneral, while the dissent cites ;= 5 which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. &t is note worthy that in the 2nited States no restriction on the publication of election survey results e$ists. &t cannot be argued that this is because the 2nited States is a mature democracy. 4either are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the 2nited 3ingdom, Austria, Jelgium, Denmar0, !stonia, ?inland, &celand, &reland, 9atvia, /alta, /acedonia, the 4etherlands, 4orway, Sweden, and 20raine, some of which are no older nor more mature than the 'hilippines in political development, do not restrict the publication of election survey results.

7hat test should then be employed to determine the constitutional validity of RI.:8 The 2nited States Supreme Court, through Chief Dustice 7arren, held in ;nite" States #) 6 ,Brien+ EAF "overnment regulation is sufficiently Austified E)F if it is within the constitutional power of the "overnmentC E;F if it furthers an important or substantial governmental interestC EBF if the governmental interest is unrelated to the suppression of free e$pressionC and E:F if the incidental restriction on alleged ?irst Amendment freedoms Eof speech, e$pression and pressF is no greater than is essential to the furtherance of that interest. = This is so far the most influential test for distinguishing content5based from content neutral regulations and is said to have %become canonical in the review of such laws.%< is noteworthy that the O ,Brien test has been applied by this Court in at least two cases.)* 2nder 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 !$pression of free e$pression.% /oreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of e$pression is greater than is necessary to achieve the governmental purpose in >uestion. 6ur in>uiry should accordingly focus on these two considerations as applied to RI.:. W?irst. Sec. I.: fails to meet criterion EBF of the 6 ,Brien test because the causal connection of e$pression to the asserted governmental interest ma0es such interest %not related to the suppression of free e$pression.% Jy prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, RI.: actually suppresses a whole class of e$pression, while allowing the e$pression of opinion concerning the same subAect matter by newspaper columnists, radio and T@ commentators, armchair theorists, and other opinion ta0ers. &n effect, RI.: shows a bias for a particular subAect matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of e$pression means that %the government has no power to restrict e$pression because of its message, its ideas, its subAect matter, or its content.%)) The inhibition of speech should be upheld only if the e$pression falls within one of the few unprotected categories dealt with in Cha linsk& #) New 3am shire, ); thus+ There are certain well5defined 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 5 those which by their very utterance inflict inAury or tend to incite an immediate breach of the peace.

ESFuch utterances are no essential part of any e$position of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality 4or is there Austification for the prior restraint which RI.:&ays on protected speech. Near #) Minnesota,)B it was held+ ETheF protection even as to previous restraint is not absolutely unlimited. Jut the limitation has been recognized only in e$ceptional casesT. 4o one would >uestion 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. 6n similar grounds, the primary re>uirements 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 governmentT Thus, contrary to the claim of the Solicitor "eneral, the prohibition imposed by RI.: cannot be Austified 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 e$pression is direct, absolute, and substantial. &t constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen ,)I- days immediately before a national election and seven ,N- days immediately before a local election. .. This sufficiently distinguishes RI.: from R.A. 4o. ((:(, R)),b-, which this Court found to be valid in National Press Clu! #) COM616C,): an" Osme:a #) COM616C))I ?or the ban imposed by R.A. 4o. ((:(, R)),b- is not only authorized by a specific constitutional provision, )( but it also provided an alternative so that, as this Court pointed out in Osme:a, there was actually no ban but only a substitution of media advertisements by the C6/!9!C space and C6/!9!C hour. Secon". !ven if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free e$pression is only incidental, RI.: nonetheless fails to meet criterion E:F of the 6 ,Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, RI.: aims at the prevention of last5minute pressure on voters, the creation of bandwagon effect, %Aun0ing% of wea0 or %losing% candidates, and resort to the form of election cheating called %dagdag5bawas.% 'raiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of e$pression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than s eechbecause of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of )<=N, )N the C6/!9!C 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 RI.:. 'ursuant to this power of the C6/!9!C, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. 4o right of reply can be invo0ed by others. 4o principle of e>uality is involved. &t is a free mar0et to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the "overnment can deal with this natural5 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 e$pression8 &t has been held that %EmereF legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to Austify such as diminishes the e$ercise of rights so vital to the maintenance of democratic institutions.%)= To summarize then, we hold that RI.: is invalid because ,)- it imposes a prior restraint on the freedom of e$pression, ,;- it is a direct and total suppression of a category of e$pression even though such suppression is only for a limited period, and ,B- the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of e$pression. 6n the other hand, the C6/!9!C contends that under Art. &K5A, RN of the Constitution, its decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this argument is that it assumes that its Resolution B(B(, /arch ), ;**) is a %decision, order, or resolution% within the meaning of Art. &K5A, RN. &ndeed, counsel for C6/!9!C maintain that Resolution B(B( was %rendered% by the Commission. 1owever, the Resolution does not purport to adAudicate the right of any party. &t is not an e$ercise by the C6/!9!C of its adAudicatory power to settle the claims of parties. To the contrary, Resolution B(B( clearly states that it is promulgated to implement the provisions of R.A. 4o. <**(. 1ence, there is no basis for C6/!9!C#s claim that this petition for prohibition is inappropriate. 'rohibition has been fund appropriate for testing the constitutionality of various election laws, rules, and regulations.)< 71!R!?6R!, the petition for prohibited "RA4T!D and RI.: of R.A. 4o. <**( R;:,h- of C6/!9!C Resolution B(B(, /arch ), ;**), are declared unconstitutional. <=w hi<)n>t S6 6RD!R!D.

G.R. No. L;1)+2*

M$- 3+, 19)2

L MEN #OLICAR#IO, plaintiff5appellant, vs. !HE MANILA !IMES # B. CO., INC., CONS!AN!E C. ROLDAN, MAN EL <. <ILLA;REAL, E. AG ILAR CR Z $%& CONSORCIO BOR5E, defendant5appellees. Mario Beng$on %or Al%re"o (on$ales an" Ra%ael M) -el%in %or "e%en"ants-a CONCE#CION, J.: Appeal from a decision of the Court of ?irst &nstance of /anila dismissing plaintiff#s complaint and defendants# counterclaim, without special pronouncement as to costs. 6riginally certified to the Court of Appeals, the record on appeal was subse>uently forwarded to us in view of the amount involved in the complaint ,'B**,***.**-. 'laintiff 9umen 'olicarpio see0s to recover ')I*,***.**, as actual damages, 'N*,***, as moral damages, '(*,*** as correctional and e$emplary damages, and ';*,***, as attorney#s fees, aside from the costs, by reason of the publication in the Saturday /irror of August )), )<I(, and in the Daily /irror of August )B, )<I(, of two ,;- articles or news items which are claimed to be per se defamatory, libelous and false, and to have e$posed her to ridicule, Aeopardized her integrity, good name and business and official transactions, and caused her grave embarrassment, untold and e$treme moral, mental and physical anguish and incalculable material, moral, professional and business damages. The defendants are The /anila Times 'ublishing Co., &nc., as publisher of The Saturday /irror and The Daily /irror, which are newspapers of general circulation in the 'hilippines, and Constante C. Roldan, /anuel @. @illa5Real, !. Aguilar Cruz and Consorcio JorAe, as the reporter or author of the first article and the managing editor, the associate editor and the news editor, respectively, of said newspapers. After its motion to dismiss the complaint had been denied by the Court of ?irst &nstance of /anila, in which the present action was initiated, the defendants filed a Aoint answer admitting the formal allegations of the complaint, denying the other allegations thereof, alleging special defenses and setting up a counterclaim for ')*,***, as attorney#s fees and e$penses of litigation. &n due course, later on, said court rendered the aforementioned decision, upon the ground that plaintiff had not proven that defendants had acted maliciously in publishing the aforementioned articles, although portions thereof were inaccurate or false. lainti%%-a ellees) ellant)

'laintiff is a member of the 'hilippine bar. 6n August )) and )B, )<I(, and for sometime prior thereto, she was e$ecutive secretary of the local 24!SC6 4ational Commission. As such officer, she had preferred charges against 1erminia D. Reyes, one of her subordinates in said Commission, and caused her to be separated from the service. /iss Reyes, in turn, preferred counter5charges which were referred to Col. Crisanto @. Alba, a Special &nvestigator in the 6ffice of the 'resident. 'ending completion of the administrative investigation, which began in Dune, )<I(, /iss Reyes filed with the 6ffice of the City ?iscal of /anila, on August =, )<I(, a complaint against the plaintiff for alleged malversation of public funds and another complaint for alleged estafa thru falsification of public documents, which were scheduled for investigation by said office on August ;;, )<I(, at ;+** p.m. /eanwhile, or on August )), )<I(, the following appeared, with a picture of the plaintiff, in the front page of The Saturday /irror+ 76/A4 'CAC 2nesco Supplies, 6??&C&A9 '69&CAR'&6 1ead 2se S2!D ?RA2DS on Colleague

RA'S 9. 6fficial ?unds

64 Accused by

Jy Constante C. Roldan 9umen 'olicarpio, e$ecutive secretary of the 2nesco national commission here, was charged with malversation and estafa in complaints filed with the city fiscal#s office by the 'residential Complaints and Action Commission today. The criminal action was initiated as a result of current administrative investigation against the 2nesco official being conducted by Col. Crisanto @. Alba, /alacaGan technical assistant, on charges filed by 1erminia D. Reyes, a 2nesco confidential assistant. The 2nesco commission functions under the 6ffice of the 'resident. ?iscal /anases ". Reyes, to whom the cases were assigned, immediately scheduled preliminary investigation of the charges on August ;; at ; p.m. Colonel Alba, in turn, indicated that the administrative phase of the in>uiry will continue /onday and then resume on August ;) at /alacaGan 'ar0. The 'alace &nvestigator said there are other charges, but would not specify these. Alba said /iss Reyes had testified on circumstances supposedly substantiating the malversation charge. Testimony had allegedly indicated that the accused had used 2nesco stencils for private and personal purposes. Specification reputedly said that /iss 'olicarpio had ta0en stencils from the 2nesco storeroom and used these for ?rench lessons not at all connected with 2nesco wor0C for the preparation of contracts of sale of pianos in her business establishmentC for preparation of invitations sent to members of the 9eague of 7omen @oters of which she is one of the officers.

Cited as witnesses on this charge are /iss Reyes, ?rancisco /analo of Jarrio Salabat, Taal, Jatangas, ?ederico @ergara and 'ablo Armesto both of the 2nesco.<Gw hH<):It Regarding the charge of estafa through falsification of public documents allegedly also committed sometime in )<II, /iss 'olicarpio was accused of having collected e$penses for supposed trips. The accusation said the 2nesco official had sought reimbursement of e$penses for a trip to Jaler, uezon, on Aug. )<, last year, representing e$penses of her car when in fact she supposedly rode in an army plane. Testimony indicated that a newspaper woman who was a supposed co5passenger had even written about the plane trip in her newspaper column. The same voucher also allegedly collected e$penses for going to a 2nesco Jayambang ,'angasinan- proAect, although records reputedly showed that she was absent in that conferences. 7itnesses cited on the charge include Aurelio Savalbaro, a 'hilippine Air ?orce pilot, 9t. Clemente Antonio and others, also of the 'A?. /iss 'olicarpio becomes the second high5ran0ing woman government official to face charges involving financial disbursements in their office. The first was Sen. 'acita /. "onzales who is still under charge mis5spending funds of the Social 7elfare Administration and the 24AC while she had charge of these. The complainant, /iss Reyes, was earlier ordered relieved from her 2nesco post by /iss 'olicarpio on charges including conduct %unbecoming a lady%, and as a result had not been paid her salary. She appealed to /alacaGan which dismissed her suit and later she sued before Dudge Rafael Amparo to compel payment of her salary. The court also reAected her plea on the ground that she had not e$hausted all administrative remedies, the 'alace not having made a clearcut decision on her case. The Daily /irror of August )B, )<I(, li0ewise, carried on its first page . with a picture of plaintiff and of /iss Reyes, ta0en during the administrative investigation being conducted by Col. Alba . another news item, reading+ %'A9AC! 6'!4S &4@!ST&"AT&64 6? RA'S A"A&4ST '69&CAR'&6 Alba 'robes Administrative 'hase of ?raud Charges Against 2nesco 7oman 6fficialC ?iscal Sets 'relim uiz 6f Criminal Suit on Aug. ;;. The administrative phase of two5pronged investigation /iss 9umen 'olicarpio, head of the 2nesco national commission here, opened in /alacaGan before Col. Crisanto @. Alba.

The Audicial in>uiry of charges filed by 1erminia D. Reyes, also the complainant in the /alacaGan case before the 'residential Complaints and Action Commission, will be conducted by ?iscal /anases ". Reyes on Aug. ;; at ; p.m. /iss 'olicarpio stands accused by Reyes of having malversed public property and of having fraudulently sought reimbursement of supposed official e$penses. Colonel Alba, at the start of his investigation at the /alacaGan 'ar0, clarified that neither he nor the 'CAC had initiated the criminal action before the city fiscal#s office. The complaint before the fiscal was started by an information she naming 1erminia D. Reyes as complainant and citing other persons as witnesses. ?iscal Reyes set preliminary investigation of these charges for Aug. ;;. /iss Reyes, technical assistant of the 2nesco, stated at the 'alace in>uiry that during )<II /iss 'olicarpio allegedly used several sheets of government stencils for her private and personal use, such as for ?rench lessons, contracts of sale of pianos and for invitations of the 9eague of 7omen @oters of which she ,/iss 'olicarpio- is an officer. The 2nesco commission here functions under the 6ffice of the 'resident. The charge was filed with the 'CAC, and the 'CAC endorsed it to Colonel Alba for investigation. /iss 'olicarpio this morning was not represented by an lawyer. ?ederico Diaz, lawyer representing complainant /iss Reyes, petitioned for the suspension of /iss 'olicarpio, e$ecutive secretary of the 2nesco. Alba did not act immediately on the petition. 1e said he was holding a hearing on the petition on August )I. During this morning#s investigation three witness appeared. The first witness was Atty. Antonio 9opez of the 'CAC who brought with him )= sheets of stencil which were allegedly used by /iss 'olicarpio for her personal use. These sheets were admitted as temporary e$hibits. The second witness was ?ederico @ergara of the 2nesco who said that he received four of the )= sheets, but he could not identify which of the sheets he had received. The third witness was ?rancisco /analo who certified on the charge of oppression in office against /iss 'olicarpio. The other charge of /iss Reyes corresponded to supposed reimbursements sought by /iss 'olicarpio for a trip to uezon 'rovince and to 'angasinan. 6n the first, /iss Reyes# complaint alleged the 2nesco official had as0ed for refund of e$penses for

use of her car when, /iss Reyes claimed she had actually made the trip aboard an army plane. /iss Reyes also said /iss 'olicarpio was absent from the Jayambang conference for which she also sought allegedly refund of e$penses. The complainant had previously been ordered relieved of her 2nesco post by /iss 'olicarpio and had later sued at the 'alace and before the Court for payment of her salary. The title of the article of August )), )<I( . %76/A4 6??&C&A9 S2!D% . was given prominence with a (5column ,about )) inches- banner headline of one5inch types. Admittedly, its sub5title . %'CAC RA'S 9. '69&CAR'&6 '&6 64 ?RA2D% . printed in bold one5centimeter types, is not true. Similarly, the statement in the first paragraph of the article, to the effect that plaintiff %was charged with malversation and estafa in complaints filed with the city fiscal#s office !& the Presi"ential Com laint an" Action Commission% . otherwise 0nown as 'CAC . is untrue, the complaints for said offenses having been filed by /iss Reyes. 4either is it true that said %criminal action was initiated as a result o% current a"ministrati#e, in#estigation%, as stated in the second paragraph of the same article. 'laintiff maintains that the effect of these false statements was to give the general impression that said investigation by Col. Alba had shown that plaintiff was guilty, or, at least, probably guilty of the crimes aforementioned, and that, as a conse>uence, the 'CAC had filed the corresponding complaints with the city fiscal#s office. She alleges, also, that although said article indicates that the charges for malversation and for estafa through falsification against her referred, respectively, to the use by her of 2nesco stencils allegedly for private and personal purposes, and to the collection of transportation e$penses, it did not mention the fact that the number of stencils involved in the charge was only )= or ;*, that the sum allegedly misappropriated by her was only 'I:, and that the falsification imputed to her was said to have been committed by claiming that certain e$penses for which she had sought and secured reimbursement were incurred in trips during the period from Duly ), )<II to September B*, )<II, although the trips actually were made, according to /iss Reyes, from Duly = to August B), )<II. Jy omitting these details, plaintiff avers, the article of August )), )<I(, had the effect of conveying the idea that the offenses imputed to her were more serious than they really were. 'laintiff, li0ewise, claims that there are other inaccuracies in the news item of August )B, )<I(, but, we do not deem it necessary to dwell upon the same for the determination of this case. 2pon the other hand, defendants contend that, although the complaints in the city fiscal#s office were filed, not by the 'CAC, but by /iss Reyes, this inaccuracy is insignificant and immaterial to the case, for the fact is that said complaints were filed with said office. As regards the number of sheets of stencil allegedly misused and the amount said to have been misappropriated by plaintiff, as well as the nature of the

falsification imputed to her, defendants argue that these %details% do not affect the truthfulness of the article as a whole, and that, in any event, the insignificant value of said sheets of stencil and the small amount allegedly misappropriated, would have had, if set forth in said article, a greater derogatory effect upon the plaintiff, aside from the circumstance that defendants had no means of 0nowing such %details%. &t appears, however, that prior to August )), )<I(, Col. Alba had already ta0en the testimony of Antonio '. 9opez, ?rancisco /analo and ?ederico @ergara, as witnesses for /iss Reyes. 1ence, defendants could have ascertained the %details% aforementioned, had they wanted to. &ndeed, some of the defendants andPor their representatives had made appropriate in>uiries from Col. Alba before said date, and some %details% . though not those adverted to above . appear in the article then published, whereas the number of sheets of stencil allegedly misused was mentioned in the news item of August )B, )<I(. /oreover, the penalty prescribed by law for the crime either of estafa or of embezzlement depends partly upon the amount of the damage caused to the offended party ,Articles B)I to B)=, Revised 'enal Code-. 1ence, the amount or value of the property embezzled is material to said offense. Again, it is obvious that the filing of criminal complaints with the city fiscal#s office by another agency of the "overnment, li0e the 'CAC, particularly after an investigation conducted by the same, imparts the ideal that the probability of guilty on the part of the accused is greater than when the complaints are filed by a private individual, specially when the latter is a former subordinate of the alleged offender, who was responsible for the dismissal of the complainant from her employment. &t is only too apparent that the article published on August )), )<I(, presented the plaintiff in a more unfavorable light than she actually was. &t goes without saying that newspapers must enAoy a certain degree of discretion in determining the manner in which a given event should be presented to the public, and the importance to be attached thereto, as a news item, and that its presentation in a sensational manner is not per se illegal. 4ewspaper may publish news items relative to Audicial, legislative or other official proceedings, which are not of confidential nature, because the public is entitled to 0now the truth with respect to such proceedings, which, being official and non5confidential, are open to public consumption. Jut, to enAoy immunity, a publication containing derogatory information must be not onl& true, !ut, also, %air, and it must be made in good faith and without any comments or remar0s. Defendants maintain that their alleged malice in publishing the news items in >uestion had not been established by the plaintiff. 1owever, Article BI: of the Revised 'enal Code, provides+

!very defamatory imputation is resume" to !e malicious, even if it be true, if no good intention and Austifiable motive for ma0ing it is shown, e$cept in the following cases+ ). A private communication made by any person to another in the performance of any legal, moral or social dutyC and ;. A fair and true report, made in good faith, without any comments or remar0s, of any Audicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the e$ercise of other functions. &n the case at bar, aside from containing information derogatory to the plaintiff, the article published on August )), )<I(, presented her in a worse predicament than that in which she, in fact, was. &n other words, said article was not a fair and true report of the proceedings there in alluded to. 7hat is more, its sub5title . %'CAC RA'S 9. '69&CAR'&6 64 ?RA2D% . is a comment or remar0, besides being false. Accordingly, the defamatory imputations contained in said article are . resume" to !e malicious.. Then too, how could defendants claim to have acted with good intentions or Austifiable motive in falsely stating that the complaints had been filed with the 6ffice of the City ?iscal by the 'CAC as a result of the administrative investigation of Col. Alba8 !ither they 0new the truth about it or they did not 0now it. &f they did, then the publication would be actually malicious. &f they did not or if they acted under a misapprehension of the facts, they were guilty of negligence in ma0ing said statement, for the conse>uences of which they are liable solidarily ,Articles ;)N(, ;)<:, ;;*= and ;;)< E&F, Civil Code of the 'hilippinesC )N R.C.9. sec. <I, p. B:<-. 7e note that the news item published on August )B, )<I(, rectified a maAor inaccuracy contained in the first article, by stating that neither Col. Alba nor the 'CAC had filed the aforementioned complaints with the city fiscal#s office. &t, li0ewise, indicated the number of sheets of stencil involved in said complaints. Jut, this rectification or clarification does not wipe out the responsibility arising from the publication of the first article, although it may and should mitigate it ,Dimenez vs. Reyes, ;N 'hil. I;-. ?or this reason, we feel that the interest of Austice and of all parties concerned would be served if the defendants indemnify the plaintiff in the sums of 'B,***, by way of moral damages, and ';,***, as attorney#s fees. 71!R!?6R!, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendants herein to pay Aointly and severally to the plaintiff the aforementioned sums of 'B,***, as moral damages, and ';,***, by way of attorney#s fees, in addition to the costs. &t is so ordered.

G.R. No. 12)()) 5$%,$r- 1(, 1999 AR! RO BOR5AL $.:.$. AR! BOR5AL $%& MALIMO SOLI<EN, petitioners, vs. CO R! O" A##EALS $%& "RANCISCO /ENCESLAO, respondents.

@iewed in modern times and the current revolution in information and communication technology, libel principles formulated at one time or another have wa$ed and waned through the years in the constant ebb and flow of Audicial review. At the very least, these principles have lost much of their flavor, drowned and swamped as they have been by the ceaseless cacophony and din of thought and discourse emanating from Aust about every source and direction, aided no less by an increasingly powerful and irrepressible mass media. 'ublic discourse, laments 3night, has been devalued by its utter commonalityC and we agree, for its logical effect is to benumb thought and sensibility on what may be considered as criminal illegitimate encroachments on the right of persons to enAoy a good, honorable and reputable name. This may e$plain the imperceptible demise of criminal prosecutions for libel and the trend to rely instead on indemnity suits to repair any damage on one#s reputation. &n this petition for review, we are as0ed to reverse the Court of Appeals in %?rancisco 7enceslao v. Arturo JorAal and /a$imo Soliven,% CA5".R. 4o. :*:<(, holding on ;I /arch )<<( that petitioners Arturo JorAal and /a$imo Soliven are solidarily liable for damages for writing and publishing certain articles claimed to be derogatory and offensive to private respondent ?rancisco 7enceslao. 'etitioners Arturo JorAal and /a$imo Soliven are among the incorporators of 'hilippines Today, &nc. ,'T&-, now 'hilSTAR Daily, &nc., owner of The 'hilippine Star, a daily newspaper. At the time the complaint was filed, petitioner JorAal was its 'resident while Soliven was ,and still is- 'ublisher and Chairman of its !ditorial Joard. Among the regular writers of The 'hilippine Star is JorAal who runs the column +a&walker. 'rivate respondent ?rancisco 7enceslao, on the other hand, is a civil engineer, businessman, business consultant and Aournalist by profession. &n )<== he served as a technical adviser of Congressman ?abian Sison, then Chairman of the 1ouse of Representatives Sub5Committee on &ndustrial 'olicy. During the congressional hearings on the transport crisis sometime in September )<== underta0en by the 1ouse Sub5Committee on &ndustrial 'olicy, those who attended agreed to organize the ?irst 4ational Conference on 9and Transportation ,?4C9T- to be participated in by the private sector in the transport industry and government agencies concerned in order to find ways and means to solve the transportation crisis. /ore importantly, the obAective of the ?4C9T was to draft an omnibus bill that would embody a long5term land transportation policy for presentation to Congress. The conference which, according to private respondent, was estimated to cost around '),=)I,***.** would be funded through solicitations from various sponsors such as government agencies, private organizations, transport firms, and individual delegates or participants. 2

BELLOSILLO, J.: '!R'!T2A99H 1A"R&DD!4 as the public is about losing one of the most basic yet oft hotly contested freedoms of man, the issue of the right of free e$pression be stirs and presents itself time and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re5survey its ever shifting terrain, e$plore and furrow its heretofore uncharted moors and valleys and finally redefine the metes and bounds of its controversial domain. This, prominently, is one such case. 'erhaps, never in Aurisprudential history has any freedom of man undergone radical doctrinal metamorphoses than his right to freely and openly e$press his views. Jlac0stone#s pontifical comment that %where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by !nglish law ... the liberty of the press, properly understood, is by no means infringed or violated,% found 0indred e$pression in the landmar0 opinion of !ngland#s Star Chamber in the 1i!elis Famosis case in )(*B. 1 That case established two maAor propositions in the prosecution of defamatory remar0s+ first, that libel against a public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. 2ntil republicanism caught fire in early America, the view from the top on libel was no less dismal. !ven the venerable Dustice 1olmes appeared to waffle as he swayed from the concept of criminal libel liability under the clear and present danger rule, to the other end of the spectrum in defense of the constitutionally protected status of unpopular opinion in free society.

6n ;= ?ebruary )<=<, at the organizational meeting of the ?4C9T, private respondent ?rancisco 7enceslao was elected !$ecutive Director. As such, he wrote numerous solicitation letters to the business community for the support of the conference. Jetween /ay and Duly )<=< a series of articles written by petitioner JorAal was published on different dates in his column +a&walker. The articles dealt with the alleged anomalous activities of an %organizer of a conference% without naming or identifying private respondent. 4either did it refer to the ?4C9T as the conference therein mentioned. uoted hereunder are e$cerpts from the articles of petitioner together with the dates they were published. 3 J< Ma& <KLK Another self5proclaimed %hero% of the !DSA Revolution goes around organizing %seminars and conferences% for a huge fee. This is a simple ploy coated in Aazzy letterheads and slic0 prose. The %hero% has the gall to solicit fees from anybody with buc0s to spare. Recently, in his usual straightforward style, Transportation Secretary Rainerio %Ray% Reyes, as0ed that his name, be stric0en off from the letterheads the %hero% has been using to implement one of his pet %seminars.% Reyes said+ %& would li0e to reiterate my re>uest that you delete my name.% 4ote that Ray Reyes is an honest man who would confront anybody eyeball to eyeball without blin0ing. K +une <KLK Another >uestionable portion of the so5called conference is its unauthorized use of the names of 'resident A>uino and Secretary Ray Reyes. The conference program being circulated claims that 'resident A>uino and Reyes will be main spea0ers in the conference. Het, the word is that Cory and Reyes have not accepted the invitation to appear in this confab. Ray Reyes even says that the conference should be unmas0ed as a moneyma0ing gimmic0. <K +une <KLK . . . some B,*** fund solicitation letters were sent by the organizer to every Tom, Dic0 and 1arry and to almost all government agencies. And the letterheads carried the names of Reyes and 'eri>uet. Agrarian Reform Secretary on leave 'hilip Duico received one, but he decided to find out front Reyes himself what the proAect was all about. Ray Reyes, in effect, advised Duico to put the

fund solicitation letter in the waste bas0et. 4ow, if the B,*** persons and agencies approached by the organizer shelled out ),*** each, that#s easily 'B million to a proAect that seems so unsophisticated. Jut note that one garment company gave ')**,***, after which the "arments Regulatory Joard headed by Trade and &ndustry 2ndersecretary "loria /acapagal5Arroyo was approached by the organizer to e$pedite the garment license application of the ')**,*** donor. M< +une <KLK A %conference organizer% associated with shady deals seems to have a lot of trash tuc0ed inside his closet. The Daywal0er continues to receive information about the man#s dubious deals. 1is notoriety, in according to reliable sources, has reached the 'remier "uest 1ouse where his name is spo0en li0e dung. $$$ $$$ $$$ The first information says that the %organizer% tried to mulct half a million pesos from a garment producer and e$porter who was being investigated for violation of the rules of the "arments, Te$tile, !mbroidery and Apparel Joard. The %organizer% told the garment e$porter that the case could be fi$ed for a sum of 'I**,***.**. The organizer got the shoc0 of his life when the e$porter told him+ %&f & have that amount. & will hire the best lawyers, not you.% The organizer left in a huff, his thic0 face very pale. $$$ $$$ $$$ ?riends in government and the private sector have promised the Daywal0er more %dope% on the %organizer.% &t seems that he was not only indiscreetC he even failed to cover his trac0s. Hou will be hearing more of the %organizer#s% e$ploits from this corner soon. MM +une <KLK The scheming %organizer% we have been writing about seems to have been spreading his wings too far. A congressional source has informed the Daywal0er that the schemer once wor0ed for a congressman from the 4orth as some sort of a consultant on economic affairs. The first thing the %organizer% did was to initiate hearings and round5the5table discussions with people from the business, e$port and . his favorite . the garments sector.

$$$ $$$ $$$ The %organizer#s% principal gamely went along, thin0ing that his %consultant% had nothing but the good of these sectors in mind. &t was only later that he realized that the %consultant% was acting with a burst of energy %in aid of e$tortion.% The %consultant% was fired. $$$ $$$ $$$ There seems to be no end to what a man could do to pursue his dubious ways. 1e has tried to operate under a guise of a well5 meaning, reformist. 1e has intellectual pretensions . and sometimes he succeeds in getting his thoughts in the inside pages of some newspapers, with the aid of some naive newspaper people. 1e has been turning out a lot of funny5loo0ing advice on investments, e$port growth, and the li0e. $$$ $$$ $$$ A cabinet secretary has one big wish. 1e is hoping for a broad power to ban croo0s and influence5peddlers from entering the premises of his department. Jut the Cabinet man might not get his wish. There is one %organizer% who, even if physically banned, call still concoct ways of doing his thing. 7ithout a tinge of remorse, the %organizer% could fill up his letterheads with, names of Cabinet members, congressmen, and reputable people from the private sector to shore up his shady reputation and cover up his notoriety. J +ul& <KLK A supposed conference on transportation was a big failure. The attendance was very poor and the few who participated in, the affair were mostly leaders of Aeepney drivers# groups. 4one of the government officials involved in regulating public transportation was there. The big names in the industry also did not participate. 7ith such a poor attendance, one wonders why the conference organizers went ahead with the affair and tried so hard to convince B,*** companies and individuals to contribute to the affair. $$$ $$$ $$$ The conference was doomed from the start. &t was bound to fail. The personalities who count in the field of transpiration refused to attend the affair or withdrew their support after finding out the

bac0ground of the organizer of the conference. 1ow could a conference on transportation succeed without the participation of the big names in the industry and government policy5ma0ers8 'rivate respondent reacted to the articles. 1e sent a letter to The 'hilippine Star insisting that he was the %organizer% alluded to in petitioner JorAal#s columns. ( &n a subse>uent letter to The 'hilippine Star, private respondent refuted the matters contained in petitioner JorAal#s columns and openly challenged him in this manner . To test if JorAal has the guts to bac0 up his holier than thou attitude, & am prepared to relin>uish this position in case it is found that & have misappropriated even one peso of ?4C9T money. 6n the other hand, if & can prove that JorAal has used his column as a %hammer% to get clients for his 'R ?irm, AA JorAal Associates, he should resign from the STAR and never again write a column. &s it a deal8 5 Thereafter, private respondent filed a complaint with the 4ational 'ress Club ,4'Cagainst petitioner JorAal for unethical conduct. 1e accused petitioner JorAal of using his column as a form of leverage to obtain contracts for his public relations firm, AA JorAal Associates. ) &n turn, petitioner JorAal published a reAoinder to the challenge of private respondent not only to protect his name and honor but also to refute the claim that he was using his column for character assassination. * Apparently not satisfied with his complaint with the 4'C, private respondent filed a criminal case for libel against petitioners JorAal and Soliven, among others. 1owever, in a Resolution dated N August )<<*, the Assistant 'rosecutor handling the case dismissed the complaint for insufficiency of evidence. The dismissal was sustained by the Department of Dustice and later by the 6ffice of the 'resident. 6n B) 6ctober )<<* private respondent instituted against petitioners a civil action for damages based on libel subAect of the instant case. 8 &n their answer, petitioners interposed compulsory counterclaims for actual, moral and e$emplary damages, plus attorney#s fees and costs. After due consideration, the trial court decided in favor of private respondent 7enceslao and ordered petitioners JorAal and Soliven to indemnify private respondent '),***,***.** for actual and compensatory damages, in addition to ';**,***.** for moral damages, ')**,***.** for e$emplary damages, ';**,***.** for attorney#s fees, and to pay the costs of suit. The Court of Appeals affirmed the decision of the court a 5uo but reduced the amount of the monetary award to '))*,***.** actual damages, ';**,***.** moral damages and 'NI,***.** attorney#s fees plus costs. &n a ;*5page Decision promulgated ;I /arch )<<(, the appellate court ruled inter alia that private respondent was sufficiently identifiable, although not named, in the >uestioned

articlesC that private respondent was in fact defamed by petitioner JorAal by describing him variously as a %self5proclaimed hero,% %a conference organizer associated with shady deals who has a lot of trash tuc0ed inside his closet,% %thic0 face,% and %a person with dubious waysC% that petitioner#s claim of privilege communication was unavailing since the privileged character of the articles was lost by their publication in a newspaper of general circulationC that petitioner could have performed his officer as a newspaperman without necessarily transgressing the rights of 7enceslao by calling the attention of the government offices concerned to e$amine the authority by which 7enceslao acted, warning the public against contributing to a conference that, according to his perception, lac0ed the univocal indorsement of the responsible government officials, or simply informing the public of the letters 7enceslao wrote and the favors he re>uested or demandedC and, that when he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual pretentions to 7enceslao, petitioner JorAal crossed the thin but clear line that separated fair comment from actionable defamation. 'rivate respondent manifested his desire to appeal that portion of the appellate court#s decision which reduced the amount of damages awarded him by filing with this Court a 'etition for !$tension of Time to ?ile 'etition and a /otion for Suspension of Time to ?ile 'etition. 9 1owever, in a Resolution dated ;N /ay )<<(, the Second Division denied both motions+ the first, for being premature, and the second, for being a wrong remedy. 6n ;* 4ovember )<<( when the ?irst Division consolidated and transferred the present case to the Second Division, there was no longer any case thereat with which to consolidate this case since ".R. 4o. );:B<( had already been disposed of by the Second Division almost si$ ,(- months earlier. 6n their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in its Resolution of ); September )<<(. 1ence the instant petition for review. The petitioners contend that the Court of Appeals erred+ ,a- in ruling that private respondent 7enceslao was sufficiently identified by petitioner JorAal in the >uestioned articlesC ,b- in refusing to accord serious consideration to the findings of the Department of Dustice and the 6ffice of the 'resident that private respondent 7enceslao was not sufficiently identified in the >uestioned articles, this notwithstanding that the degree of proof re>uired in a preliminary investigation is merely rima %acieevidence which is significantly less than the preponderance of evidence re>uired in civil casesC ,c- in ruling that the subAect articles do not constitute >ualifiedly privileged communicationC ,d- in refusing to apply the %public official doctrine% laid down in 4ew Hor0 Times v. SullivanC ,e- in ruling that the >uestioned articles lost their privileged character because of their publication in a newspaper of general circulationC ,f- in ruling that private respondent has a valid cause of action for libel against petitioners although he failed to prove actual malice on their part, and that the prosecutors of the City of /anila, the Department of Dustice, and eventually, the 6ffice of the 'resident, had already resolved that there was no sufficient evidence to prove the e$istence of libelC and, ,g-

assuming arguen"o that JorAal should be held liable, in adAudging petitioner Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the appellate court#s ruling, the dismissal of the complaint against them for lac0 of merit, and the award of damages on their counterclaim. The petition is impressed with merit. &n order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. &t is also not sufficient that the offended party recognized himself as the person attac0ed or defamed, but it must be shown that at least a third person could identify him as the obAect of the libelous publication. 1+ Regrettably, these re>uisites have not been complied with in the case at bar. &n ruling for private respondent, the Court of Appeals found that JorAal#s column writings sufficiently identified 7enceslao as the %conference organizer.% &t cited the ?irst 4ational Conference on 9and Transportation, the letterheads used listing different telephone numbers, the donation of ')**,***.** from Duliano 9im and the reference to the #%organizer of the conference% . the very same appellation employed in all the column items . as having sufficiently established the identity of private respondent 7enceslao for those who 0new about the ?4C9T who were present at its inception, and who had pledged their assistance to it. 7e hold otherwise. These conclusions are at variance with the evidence at hand. The >uestioned articles written by JorAal do not identify private respondent 7enceslao as the organizer of the conference. The first of the +a&walker articles which appeared in the B) /ay )<=< issue of The 'hilippine Star yielded nothing to indicate that private respondent was the person referred to therein. Surely, as observed by petitioners, there were millions of %heroes% of the !DSA Revolution and anyone of them could be %self5proclaimed% or an %organizer of seminars and conferences.% As a matter of fact, in his < Dune )<=< column petitioner JorAal wrote about the %so5called ?irst 4ational Conference on 9and Transportation whose principal organizers are not specified% ,emphasis supplied-. 114either did the ?4C9T letterheads 12 disclose the identity of the conference organizer since these contained only an enumeration of names where private respondent ?rancisco 7enceslao was described as !$ecutive Director and Spo0esman and not as a conference organizer. 13 The printout 1( and tentative program 15 of the conference were devoid of any indication of 7enceslao as organizer. The printout which contained an article entitled %7ho 6rganized the 4C9T8% did not even mention private respondent#s name, while the tentative program only denominated private respondent as %@ice Chairman and !$ecutive Director,% and not as organizer. 4o less than private respondent himself admitted that the ?4C9T had several organizers and that he was only a part of the organization, thus . & would li0e to clarify for the record that & was only a part of the organization. & was invited then because & was the head of the

technical panel of the 1ouse of Representatives Sub5Committee on &ndustrial 'olicy that too0 care of congressional hearings. 1) Significantly, private respondent himself entertained doubt that he was the person spo0en of in JorAal#s columns. The former even called up columnist JorAal to in>uire if he ,7enceslao- was the one referred to in the subAect articles. 1* 1is letter to the editor published in the : Dune )<=< issue of The 'hilippine Star even showed private respondent 7enceslao#s uncertainty . Although he used a subterfuge, & was almost certain that Art JorAal referred to the ?irst 4ational Conference on 9and Transportation ,Dune ;<5B*- and me in the second paragraph of his /ay B) column . . . 18 &dentification is grossly inade>uate when even the alleged offended party is himself unsure that he was the obAect of the verbal attac0. &t is well to note that the revelation of the identity of the person alluded to came not from petitioner JorAal but from private respondent himselfC when he supplied the information through his : Dune )<=< letter to the editor. 1ad private respondent not revealed that he was the %organizer% of the ?4C9T referred to in the JorAal articles, the public would have remained in blissful ignorance of his identity. &t is therefore clear that on the element of identifiability alone the case falls. The above dis>uisitions notwithstanding, and on the assumption arguen"o that private respondent has been sufficiently identified as the subAect of JorAal#s disputed comments, we now proceed to resolve the other issues and pass upon the pertinent findings of the courts a 5uo. The third, fourth, fifth and si$th assigned errors all revolve around the primary >uestion of whether the disputed articles constitute privileged communications as to e$empt the author from liability. The trial court ruled that petitioner JorAal cannot hide behind the proposition that his articles are privileged in character under the provisions of Art. BI: of The Revised 'enal Code which state . Art. BI:. Re>uirement for publicity. . !very defamatory imputation is presumed to be malicious, even if it be true, if no good intention and Austifiable motive for ma0ing it is shown, e$cept in the following cases+ )- A private communication made by any person to another in the performance of any legal, moral or social dutyC and,

;- A fair and true report, made in good faith, without any comments or remar0s, of any Audicial 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 e$ercise of their functions. Respondent court e$plained that the writings in >uestion did not fall under any of the e$ceptions described in the above5>uoted article since these were neither %private communications% nor %fair and true report . . . without any comments or remar0s.% Jut this is incorrect. A privileged communication may be either absolutely privileged or >ualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An e$ample is found in Sec. )), Art.@&, of the )<=N Constitution which e$empts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. 2pon the other hand, >ualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention Austifiable motive. To this genre belong %private communications% and %fair and true report without any comments or remar0s.% &ndisputably, petitioner JorAal#s >uestioned writings are not within the e$ceptions of Art. BI: of The Revised 'enal Code for, as correctly observed by the appellate court, they are neither private communications nor fair and true report without any comments or remar0s. 1owever this does not necessarily mean that they are not privileged. To be sure, the enumeration under Art. BI: is not an e$clusive list of >ualifiedly privileged communications since fair commentaries on matters of public interest are li0ewise privileged. The rule on privileged communications had its genesis not in the nation#s penal code but in the Jill of Rights of the Constitution guaranteeing freedom of speech and of the press. 19 As early as )<)=, in ;nite" States #) Ca:ete, 2+ this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it e$press recognition in the statute punishing libels. The concept of privileged communications is implicit in the freedom of the press. As held in 6li$al"e #) (utierre$ 21and reiterated in Santos #) Court o% A eals 22 . To be more specific, no culpability could be imputed to petitioners for the alleged offending publication without doing violence to the concept of privileged communications implicit in the freedom of the press. As was so well put by Dustice /alcolm in Justos+ %'ublic policy, the welfare of society, and the orderly administration of government have demanded protection of public

opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege.% The doctrine formulated in these two ,;- cases resonates the rule that privileged communications must, sui generis, be protective of public opinion. This closely adheres to the democratic theory of free speech as essential to collective self5 determination and eschews the strictly libertarian view that it is protective solely of self5e$pression which, in the words of Hale Sterling 'rofessor 6wen ?iss, 23 ma0es its appeal to the individualistic ethos that so dominates our popular and political culture. &t is therefore clear that the restrictive interpretation vested by the Court of Appeals on the penal provision e$empting from liability only private communications and fair and true report without comments or remar0s defeats, rather than promotes, the obAective of the rule on privileged communications, sadly contriving as it does, to suppress the healthy effloresence of public debate and opinion as shining linchpins of truly democratic societies. To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is Audicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. &n order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. &f the comment is an e$pression of opinion, based on established facts, then it is immaterial that the opinion happens to be mista0en, as long as it might reasonably be inferred from the facts. 21 There is no denying that the >uestioned articles dealt with matters of public interest. &n his testimony, private respondent spelled out the obAectives of the conference thus . . . . The principal conference obAective is to come up with a draft of an 6mnibus Jill that will embody a long term land transportation policy for presentation to Congress in its ne$t regular session in Duly. Since last Danuary, the 4ational Conference on 9and Transportation ,4C9T-, the conference secretariat, has been enlisting support from all sectors to ensure the success of the proAect. 25 'rivate respondent li0ewise testified that the ?4C9T was raising funds through solicitation from the public 5 + 4ow, in this first letter, you have attached a budget and it says here that in this seminar of the

?irst 4ational Conference on 9and Transportation, you will need around 6ne million eight hundred fifteen thousand pesos, is that right8 A+ That was the budget estimate, sir. + 1ow do you intend as e$ecutive officer, to raise this fund of your seminar8 A+ 7ell, from sponsors such as government agencies and private sectors or organizations as well as individual transport firms and from individual delegatesPparticipants. 2) The declared obAective of the conference, the composition of its members and participants, and the manner by which it was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. An organization such as the ?4C9T aiming to reinvent and reshape the transportation laws of the country and see0ing to source its funds for the proAect from the public at large cannot dissociate itself from the public character of its mission. As such, it cannot but invite close scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the activity and of the >ualifications and integrity of the personalities behind it. This in effect is the strong message in New ?ork Times #) Sulli#an 2* which the appellate court failed to consider or, for that matter, to heed. &t insisted that private respondent was not, properly spea0ing, a %public official% nor a %public figure,% which is why the defamatory imputations against him had nothing to do with his tas0 of organizing the ?4C9T. New ?ork Times #) Sulli#an was decided by the 2. S. Supreme Court in the )<(*s at the height of the bloody rioting in the American South over racial segregation. The then City Commissioner 9. J. Sullivan of /ontgomery, Alabama, sued 4ew Hor0 Times for publishing a paid political advertisement espousing racial e>uality and describing police atrocities committed against students inside a college campus. As commissioner having charge over police actions Sullivan felt that he was sufficiently identified in the ad as the perpetrator of the outrageC conse>uently, he sued 4ew Hor0 Times on the basis of what he believed were libelous utterances against him. The 2. S. Supreme Court spea0ing through /r. Dustice 7illiam D. Jrennan Dr. ruled against Sullivan holding that honest criticisms on the conduct of public officials and public figures are insulated from libel Audgments. The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the

statement was made with actual malice, i.e., with 0nowledge that it was false or with rec0less disregard of whether it was false or not. The raison ", >tre for the 4ew Hor0 Times doctrine was that to re>uire critics of official conduct to guarantee the truth of all their factual assertions on pain of libel Audgments would lead to self5censorship, since would be critics would be deterred from, voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the e$pense of having to prove it. 28 &n the present case, we deem private respondent a public figure within the purview of the 4ew Hor0 Times ruling. At any rate, we have also defined %public figure% in A&ers Pro"uction Pt&), 1t") #) Ca ulong 29 as . . . . . a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a %public personage.% 1e is, in other words, a celebrity. 6bviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. &t includes public officers, famous inventors and e$plorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the "reat !$alted Ruler of the lodge. &t includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. The ?4C9T was air underta0ing infused with public interest. &t was promoted as a Aoint proAect of the government and the private sector, and organized by top government officials and prominent businessmen. ?or this reason, it attracted media mileage and drew public attention not only to the conference itself but to the personalities behind as well. As its !$ecutive Director and spo0esman, private respondent conse>uently assumed the status of a public figure. Jut even assuming e*-gratia argumenti that private respondent, despite the position he occupied in the ?4C9T, would not >ualify as a public figure, it does not necessarily follow that he could not validly be the subAect of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue. &f a matter is a subAect of public or general interest, it cannot suddenly became less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The public#s primary interest is in the eventC 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. 3+

There is no denying that the >uestioned articles dealt with matters of public interest. A reading of the imputations of petitioner JorAal against respondent 7enceslao shows that all these necessarily bore upon the latter#s official conduct and his moral and mental fitness as !$ecutive Director of the ?4C9T. The nature and functions of his position which included solicitation of funds, dissemination of information about the ?4C9T in order to generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and competence. These are matters about which the public has the right to be informed, ta0ing into account the very public character of the conference itself. Concededly, petitioner JorAal may have gone overboard in the language employed describing the %organizer of the conference.% 6ne is tempted to wonder if it was by some mischievous gambit that he would also dare test the limits of the %wild blue yonder% of free speech in this Aurisdiction. Jut no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly e$pressed by /r. Dustice Jrennan in New ?ork Times #) Sulli#an, %EDFebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attac0s on the government and public officials. 31 The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters in the absence of proof to the contrary, the >uestion of privilege is immaterial. 7e reAect this postulate. 7hile, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. 32 The onus of proving actual malice then lies on plaintiff, private respondent 7enceslao herein. 1e must bring home to the defendant, petitioner JorAal herein, the e$istence of malice as the true motive of his conduct. 33 /alice connotes ill will or spite and spea0s not in response to duty but merely to inAure the reputation of the person defamed, and implies an intention to do ulterior and unAustifiable harm. 3( /alice is bad faith or bad motive. 35 &t is the essence of the crime of libel. 3) &n the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in >uestion petitioner JorAal acted with malice8 'rimarily, private respondent failed to substantiate by preponderant evidence that petitioner was animated by a desire to inflict un9usti%ia!le harm on his reputation, or that the articles were written and published without goo" moti#es or 9usti%ia!le en"s . 6n the other hand, we find petitioner JorAal to have acted in good faith. /oved by a sense of civic duty and prodded by his responsibility as a newspaperman, he proceeded to e$pose and denounce what he perceived to be a public deception.

Surely, we cannot begrudge him for that. !very citizen has the right to enAoy a good name and reputation, but we do not consider that petitioner JorAal has violated that right in this case nor abused his press freedom. ?urthermore, to be considered malicious, the libelous statements must be shown to have been written or published with the 0nowledge that they are false or in rec0less disregard of whether they are false or not. 3* %Rec0less disregard of what is false or not% means that the defendant entertains serious doubt as to the truth of the publication, 38 or that he possesses a high degree of awareness of their probable falsity. 39 The articles subAect of the instant case can hardly be said to have been written with 0nowledge that these are false or in rec0less disregard of what is false or not. This is not to say however that the very serious allegations of petitioner JorAal assumed by private respondent to be directed against him are true. Jut we nevertheless find these at least to have been based on reasonable grounds formed after the columnist conducted several personal interviews and after considering the varied documentary evidence provided him by his sources. Thus, the following are supported by documentary evidence+ ,a- that private respondent re>uested "loria /acapagal5 Arroyo, then head of the "arments and Te$tile !$port Joard ,"T!J-, to e$pedite the processing and release of the import approval and certificate of availability of a garment firm in e$change for the monetary contribution of Duliano 9im, which necessitated a reply from the office of "loria /acapagal5Arroyo e$plaining the procedure of the "T!J in processing applications and clarifying that all applicants were treated e>uallyC (+ ,b- that Antonio 'eri>uet was designated Chairman of the !$ecutive Committee of the ?4C9T notwithstanding that he had previously declined the offerC (1 and, ,c- that despite the fact that then 'resident A>uino and her Secretary of Transportation Rainerio Reyes declined the invitation to be guest spea0ers in the conference, their names were still included in the, printout of the ?4C9T. (2 Added to these are the admissions of private respondent that+ ,a- he assisted Duliano 9im in his application for a >uota allocation with the "T!J in e$change for monetary contributions to the ?4C9TC (3 ,b- he included the name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the conference notwithstanding the latter#s refusal to lend his name to and participate in the ?4C9TC (( and, ,c- he used different letterheads and telephone numbers. (5 !ven assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. !rrors or misstatements are inevitable in any scheme of truly free e$pression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mista0es or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misAudgment. 6nly by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. () &n Bulletin Pu!lishing Cor ) #) Noel(* we held 5

A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and 0eeps within the standards of morality and civility prevailing within the general community. To avoid the self5censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for inAury to reputation are re>uired to allow an ade>uate margin of error by protecting some inaccuracies. &t is for the same reason that the 4ew Hor0 Times doctrine re>uires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of %actual malice% on the part of the person ma0ing the libelous statement. At any rate, it may be salutary for private respondent to ponder upon the advice of /r. Dustice /alcolm e$pressed in ;)S) #) Bustos, (8 that %the interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. /en in public life may suffer under a hostile and unAust accusationC the wound may be assuaged by the balm of a clear conscience. A public official must not be too thin5 s0inned with reference to comments upon his official acts.% The foregoing disposition renders the second and seventh assigned errors moot and academic, hence, we find no necessity to pass upon them. 7e must however ta0e this opportunity to li0ewise remind media practitioners of the high ethical standards attached to and demanded by their noble profession. The danger of an unbridled irrational e$ercise of the right of free speech and press, that is, in utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self5destruction of the right and the regression of human society into a veritable 1obbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute %unrestraint% in speech is to truly comprehend the >uintessence of freedom in the mar0etplace of social thought and action, genuine freedom being that which is limned by the freedom of others. &f there is freedom of the press, ought there not also be freedom from the press8 &t is in this sense that self5regulation as distinguished from self5censorship becomes the ideal mean for, as /r. Dustice ?ran0furter has warned, %E7Fithout . . . a lively sense of responsibility, a free press may readily become a powerful instrument of inAustice.% (9 9est we be misconstrued, this is not to diminish nor constrict that space in which e$pression freely flourishes and operates. ?or we have always strongly maintained, as we do now, that freedom of e$pression is man#s birthright 5constitutionally

protected and guaranteed, and that it has become the singular role of the press to act as its %defensor fidei% in a democratic society such as ours. Jut it is also worth 0eeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does not carry with it an restricted hunting license to prey on the ordinary citizen. 5+ 6n petitioners# counterclaim for damages, we find the evidence too meager to sustain any award. &ndeed, private respondent cannot be said to have instituted the present suit in abuse of the legal processes and with hostility to the pressC or that he acted maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to damages. 6n the contrary, private respondent acted within his rights to protect his honor from what he perceived to be malicious imputations against him. 'roof and motive that the institution of the action was prompted by a sinister design to ve$ and humiliate a person must be clearly and preponderantly established to entitle the victim to damages. The law could not have meant to impose a penalty on the right to litigate, nor should counsel#s fees be awarded every time a party wins a suit. 51 ?or, concluding Co. 52 K with the wisdom in 0arren #) Pulit$er Pu!lishing

!very man has a right to discuss matters of public interest. A clergyman with his floc0, an admiral with his fleet, a general with his army, a Audge with his AuryC we are, all of us, the subAect of public discussion. The view of our court has been thus stated+ %&t is only in despotisms that one must spea0 su! rosa, or in whispers, with bated breath, around the corner, or in the dar0 on a subAect touching the common welfare. &t is the brightest Aewel in the crown of the law to spea0 and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion, on the other. 71!R!?6R!, the petition is "RA4T!D. The Decision of the Court of Appeals of ;I /arch )<<( and its Resolution of ); September )<<( denying reconsideration are, R!@!RS!D and S!T AS&D!, and the complaint for damages against petitioners is D&S/&SS!D. 'etitioners# counterclaim for damages is li0ewise D&S/&SS!D for lac0 of merit. 4o costs.<=w hi<)n>t S6 6RD!R!D.

membership of the club and that she would not be a candidate for any award or citation from the school. Delmo as0ed for a reconsideration of the decision but the petitioner denied it. Delmo, thus, appealed to the 6ffice of the Director of the Jureau of 'ublic Schools. The Director after due investigation, rendered a decison on April )B, )<(( which provided+ Records of the preliminary investigation conducted by one of the legal officers of this 6ffice disclosed the following+ That @ioleta Delmo was the treasurer of the Student 9eadership Club, an e$clusive student organizationC that pursuant to Article &K of the of the Constitution and Jy59aws of the club, it passed Resolution 4o. ;, authorizing the treasurer to disburse funds of the Club to student for financial aid and other humanitarian purposesC that in compliance with said resolution and as treasurer of the Club, @ioleta Delmo e$tended loans to some officers and members of the Club upon proper application duly approved by the maAority of the members of the !$ecutive JoardC and that upon receiving the report from /r. Desse Dagoon, adviser of the funds of the Club, that 6ffice conducted an investigation on the matter and having been convinced of the guilt of @iolets Delmo and the other officers and members of the Club, that 6ffice rendered the order or decision in >uestion. &n Austifying that 6ffice#s order or decision, it is contended that approval by that 6ffice of the Constitution and Jy59aws of the Club is necessary for its effectivity and validity and since it was never submitted to that 6ffice, the Club had no valid constitution and Jy59aws and that as a conse>uence, Resolution 4o. ; which was passed based on the Constitution and Jy59aws5 is without any force and effect and the treasurer, @ioleta Delmo, who e$tended loans to some officers and members of the Club pursuant thereto are illegal ,sic-, hence, she and the other students involved are deemed guilty of misappropriating the funds of the Club. 6n the other hand, Raclito Castaneda, 4estor "olez and @ioleta Delmo, 'resident, Secretary and Treasurer of the Club, respectively, testified that the Club had adopted its Constitution and Jy59aws in a meeting held last 6ctober B, )<(I, and that pursuant to Article & of said Constitution and Jy59aws, the maAority of the members of the !$ecutive Joard passed Resolution 4o. ;, which resolution became the basis for the e$tension on of loans to some officers and members of the Club, that the Club honestly believed that its Constitution and Jy59aws has been approved by the superintendent because the adviser of the Club, /r. Desse Dagoon, assured the 'resident of the Club that he will cause the approval of the Constitution and Jy59aws by the

G.R. No. L;5(598 Apr01 15, 1988 5OSE B. LEDESMA, petitioner, vs. HON. CO R! O" A##EALS, Spo,7e7 #ACI"ICO DELMO $%& SANCHA DELMO ?$7 pr0=$te re7po%&e%t7@,respondents. The Solicitor (eneral %or etitioner) 1u$el -) -emasu-a& %or res on"ent)

G !IERREZ, 5R., J.: This petition see0s to reverse the decision of the respondent Court of Appeals which afirmed the decision of the Court of ?irst &nstance of &loilo, adAudging the petitioner, who was then the 'resident of the 7est @isayas College liable for damages under Article ;N of the Civil Code of the 'hilippines for failure to graduate a student with honors. The facts are not disputed. An organization named Student 9eadership Club was formed by some students of the 7est @isayas College. They elected the late @iolets Delmo as the treasurer. &n that capacity, Delmo e$tended loans from the funds of the club to some of the students of the school. %the petitioner claims that the said act of e$tending loans was against school rules and regulations. Thus, the petitioner, as 'resident of the School, sent a letter to Delmo informing her that she was being dropped from the

SuperintendentC the officers of the Club have been inducted to office on 6ctober <,)<(I by the Superintendent and that the Club had been li0ewise allowed to cosponsor the !ducation 7ee0 Celebration. After a careful study of the records, this 6ffice sustains the action ta0en by the Superintendent in penalizing the adviser of the Club as well as the officers and members thereof by dropping them from membership therein. 1owever, this 6ffice is convinced that @iolets /. Delmo had acted in good faith, in her capacity as Club Treasurer, in e$tending loans to the officers and members of the Student partnership Club. Resolution 4o. ; authorizing the Club treasurer to discharge finds to students in need of financial assistance and other humanitarian purposes had been approved by the Club adviser, /r. Desse Dagoon, with the notation that approval was given in his capacity as adviser of the Club and e$tension of the Superintendent#s personality. Aside from misleading the officers and members of the Club, /r. Dagoon, had unsatisfactorily e$plained why he failed to give the Constitution and Jy59aws of the Club to the Superintendent for approval despite his assurance to the Club president that he would do so. 7ith this finding of negligence on the part of the Club adviser, not to mention la$ity in the performance of his duties as such, this 6ffice considers as too severe and unwarranted that portion of the >uestioned order stating that @ioleta Delmo %shall not be a candidate for any award or citation from this school or any organization in this school.% @ioleta Delmo, it is noted, has been a consistent full scholar of the school and she alone has maintained her scholarship. The decision in >uestion would, therefore, set at naught all her sacrifice and frustrate her dreams of graduating with honors in this year#s commencement e$ercises. &n view of all the foregoing, this 6ffice believes and so holds and hereby directs that appellant @ioleta. /. Delmo, and for that matter all other Club members or officers involved in this case, be not deprived of any award, citation or honor from the school, if they are otherwise entitled thereto. ,Rollo, pp. ;=5B*6n April ;N, )<((, the petitioner received by mail the decision of the Director and all the records of the case. 6n the same day, petitioner received a telegram stating the following+ %A&R/A&9 R!C6RDS D!9/6 CAS! /&SS!4T T1AT 6??&C!%

The Director as0ed for the return only of the records but the petitioner allegedly mistoo0 the telegram as ordering him to also send the decision bac0. 6n the same day, he returned by mail all the records plus the decision of the Director to the Jureau of 'ublic Schools. The ne$t day, the petitioner received another telegram from the Director order him to furnish Delmo with a copy of the decision. The petitioner, in turn, sent a night letter to the Director informing the latter that he had sent the decision bac0 and that he had not retained a copy thereof.. 6n /ay B, )<((, the day of the graduation, the petitioner received another telegram from the Director ordering him not to deprive Delmo of any honors due her. As it was impossible by this time to include Delmo#s name in the program as one of the honor students, the petitioner let her graduate as a plain student instead of being awarded the 9atin honor of /agna Cum 9aude. To delay the matter further, the petitioner on /ay I, )<((, wrote the Director for a reconsideration of the latters% decision because he believed that Delmo should not be allowed to graduate with honors. The Director denied the petitioner#s re>uest. 6n Duly );, )<((, the petitioner finally instructed the Registrar of the school to enter into the scholastic records of Delmo the honor, %/agna Cum 9aude.% 6n Duly B*, )<((, Delmo, then a minor, was Aoined by her parents in flag action for damages against the petitioner. During the pendency of the action, however, Delmo passed away, and thus, an Amended and Supplemental Complaint was filed by her parents as her sole and only heirs. The trial court after hearing rendered Audgment against the petitioner and in favor of the spouses Delmo. The court said+ 9et us go to specific badges of the defendants ,now petitionersbad faith. 'er investigation of @ioleta Delmo#s appeal to Director @italiano Jernardino of the Jureau of 'ublic Schools ,!$hibit 9 it was the defendant who inducted the officers of the Student 9eadership Club on 6ctober <, )<(I. &n fact the Club was allowed to cosponsor the !ducation 7ee0 Celebration. ,!$h. %9%-. &f the defendant he not approve of the constitution and by5laws of the Club, why did he induct the officers into office and allow the Club to sponsor the !ducation 7ee0 Celebration%8 &t was through his own act that the students were misled to do as they did. Coupled with the defendants tacit recognition of the Club was the assurance of /r. Demm Dagoon, Club Adviser, who made the students believe that he was acting as an e$tension of /r. 9edesma#s personality. ,!$hibit %9%-.

Another badge of the defendan#ts want of good faith is the fact that, although, he 0aew as early as April ;N,)<(( that per on of r Jernardino, !$hibit %9,% he was directed to give honors to /iss Delmo, he 0ept &d information to . 1e told the Court that he 0new that the letter of Director Jernardino directed him not to deprive /iss Delmo the honors due her, but she ,sic- says that he has not finished reading the letter5decision, !$hibit %9,% of Director Jernardino *, him to give honors to /iss Delmo. ,Tsn, ?eb. I, )<N:, testimony of /r. 9edesma, pp. .BB5BI-. &t could not be true that he has not finished reading the letter5decision, !$h. %9,% because said letter consisted of only three pages, and the portion which directed that /iss Delmo %be not deprived of any award, citation or honor from the school, if otherwise entitled thereto is found at the last paragraph of the same. 1ow did he 0now the last paragraph if he did not read the letter. Defendants actuations regarding /iss Delmo#s cam had been one of bias and preAudice. 7hen his action would favor him, he was deliberate and aspect to the utter preAudice and detriment of /iss Delmo. Thus, although, as early as April ;N, )<((, he 0new of the e$oneration of /iss Delino by Director Jernardino, he withheld the information from /iss Delmo. This is elo>uently dramatized by !$h. %))% and !$h. %)B% 6n April ;<,)<((, Director Jernardino cabled him to furnish @ioleta Delmo copy of the Decision, !$h. %9,% but instead of informing /iss Delmo about the decision, since he said he mailed bac0 the decision on April ;=,)<((, he sent a night letter on April ;<,)<((, to Director Jernardino, informing the latter that he had returned the decision ,!$h. %lB%-, together with the record. 7hy a night letter when the matter was of utmost urgency to the parties in the case, because graduation day was only four days ahead8 An e$amination of the telegrams sent by the defendant shows that he had been sending ordinary telegram and not night letters. ,!$h. %I%, !$hibit %N%-. At least, if the defendant could not furnish a copy of the decision, ,!$h. %9%-, to /iss Delmo, he should have told her about it or that /iss Delmo#s honors and citation in the commencement be announced or indicated. Jut /r. 9edesma is one who cannot admit a mista0e. @ery ungentlemanly this is home out by his own testimony despite his 0nowledge that his decision to deprive /iss Delmo of honors due to her was overturned by Director Jernardino, he on his wrong belief. To >uote the defendant,) believed that she did not deserve those honors,Tsn ?eb. I, )<N:, p. :B,!mpasized supplied-. Despite the telegram of Director Jernardino which the defendant received hours before the commencement e$ecutory on /ay B5:,)<((, he did not obey Director Jernardino because he said in his testimony that he would be embarrassment . Tan ?eb I,)<N:, '. :(-.

!vidently, he 0new only his embarrassment and not that of r Jernardino whose order was being flagrantly and wantonly disregarded by bim And certainly, not the least of /iss Delmo#s embarrassment. 1is acts spea0 elo>uently of ho bad faith and unAust of mindwarped by his delicate sensitivity for having been challenged by /iss Delmo, a mere student. $$$ $$$ $$$ ?inally the defendant#s behaviour relative to /iss s case smac0s of contemptuous arrogance, oppression and abuse of power. Come to thin0 of it. 1e refused to obey the directive of Je o and instead, chose to feign ignorance of it.% ,Reward on Appeal, p. N;5N(-. The trial court awarded ';*,***.** to the estate of @ioleta Delmo and ')*,***.** to her parents for moral damagesC 'I,***.** for nominal damages to @ioleta#s estateC e$emplary damages of ')*,***.** and ';,***.** attorney#s fees. 6n appeal, the Court of Appeals affirmed the decision. 1ence, this petition. The issues raised in this petition can be reduced to the sole >uestion of whether or not the respondent Court of Appeals erred in affirming the trial court#s finding that petitioner is liable for damages under Article ;N of the 4ew Civil Code. 7e find no reason why the findings of the trial and appellate courts should be reversed. &t cannot be disputed that @ioleta Delmo went through a painful ordeal which was brought about by the petitioner#s neglect of duty and callousness. Thus, moral damages are but proper. As we have affirmed in the case of ,'rudenciado v. Alliance Transport System, &nc., ):= SCRA ::*, ::=-+ There is no argument that moral damages include physical suffering, mental anguish, fright, serious an$iety, besmirched reputation, wounded feelings, moral shoc0, social humiliation, and similar inAury. Though incapable of pecuniary computation, moral damages may be recovered if they are the pro$imate result of defendant#s wrongly act or omission.% ,'eople v. Jaylon, );< SCRA (; ,)<=:-. The Solicitor5"eneral tries to cover5up the petitioner#s deliberate omission to inform /iss Delmo by stating that it was not the duty of the petitioner to furnish her a copy of the Director#s decision. "ranting this to be true, it was nevertheless the petitioner#s duty to enforce the said decision. 1e could have done so considering that he received the decision on April ;N, )<(( and even though he sent it bac0 with the records of the case, he undoubtedly read the whole of it which consisted of only three pages. /oreover, the petitioner should have had the decency to meet with /r. Delmo, the

girl#s father, and inform the latter, at the very least of the decision. This, the petitioner li0ewise failed to do, and not without the attendant bad faith which the appellate court correctly pointed out in its decision, to wit+ Third, assuming that defendant could not furnish /iss Delmo of a copy of the decision, he could have used his discretion and plain common sense by informing her about it or he could have directed the inclusion of /iss Delmo#s honor in the printed commencement program or announced it during the commencement e$ercises. ?ourth, defendant despite receipt of the telegram of Director Jenardino hours before the commencement e$ercises on /ay B5:, )<((, disobeyed his superior by refusing to give the honors due /iss Delmo with a lame e$cuse that he would be embarrassed if he did so, to the preAudice of and in complete disregard of /iss Delmo#s rights. ?ifth, defendant did not even e$tend the courtesy of meeting /r. 'acifico Delmo, father of /iss Delmo, who tried several times to see defendant in his office thus /r. Delmo suffered e$treme disappointment and humiliation. $$$ $$$ $$$ Defendant, being a public officer should have acted with circumspection and due regard to the rights of /iss Delmo. &nasmuch as he e$ceeded the scope of his authority by defiantly disobeying the lawful directive of his superior, Director Jernardino, defendant is liable for damages in his personal capacity. . . . ,Rollo, pp5 IN5I=Jased on the undisputed facts, e$emplary damages are also in order. &n the same case of Pru"encia"o #) Alliance Trans ort S&stem, Inc), su ra), at p. :I*, we ruled+ The rationale behind e$emplary or corrective damages is, as the name implies, to provide an e$ample or correction for the public good ,9opez, et al. v. 'an American 7orld Airways, )( SCRA :B)-. 1owever, we do not deem it appropriate to award the spouses Delmo damages in the amount of ')*,***.** in their individual capacity, separately from and in addition to what they are already entitled to as sole heirs of the deceased @ioleta Delmo. Thus, the decision is modified insofar as moral damages are awarded to the spouses in their own behalf.

71!R!?6R!, the petition is D&S/&SS!D for lac0 of merit. The decision of the Court of Appeals is A??&R/!D with the slight modification as stated in the preceding paragraph. This decision is immediately e$ecutory. S6 6RD!R!D.

respectively, of the local wee0ly newspaper Jicol ?orum, did then and there willfully, unlawfully and feloniously, without Austifiable motive and with malicious intent of impeaching, discrediting and destroying the honor, integrity, good name and reputation of the complainant as /inister of the 'residential Commission on "overnment Reorganization and concurrently "overnor of the 'rovince of Camarines Sur, and to e$pose him to public hatred, ridicule and contempt, write, edit, publish and circulate an issue of the local wee0ly newspaper J&C69 ?6R2/ throughout the Jicol Region, with banner headline and front page news item read by the public throughout the Jicol Region, pertinent portions of which are >uoted verbatim as follows+ O@&99A?2!RT!LS D!4&A9 C64@&4C!S 46 64!Q 4A"A C&TH5"ov. 9uis @illafuerteLs denial that he did not spend government money for his trips to Dapan and &srael two wee0s ago has failed to convince people in Camarines Sur, reliable sources said. 7hat the people 0now, the sources said, is that the two trips of the governor who is also the minister of the "overnment Reorganization Commission was purely Aun0et. This was confirmed when capitol sources disclosed that about 'N**,***.** collected by way of cash advances by ran0ing provincial officials were allegedly used for the two trips. The cash advances, the sources said, were made at the instance of @illafuerte. &t was learned that the amount was withdrawn without resolution approving its release. @illarfuerte however said that he spent his own money for the two trips. The governor was accompanied abroad by political supporters mostly municipal mayors in Camarines Sur, the report said. This was contested by several individuals who told Jicol ?orum that the members of @illafuerteLs entourage did not have official functions in the province. @illafuerte and his companions reportedly attended the )<=( baseball games in Dapan. 7hen in truth and in fact said allegations are false and utterly untrue as the complainant has not done such acts, thus embarrassing, discrediting and ridiculing him before his friends, followers and other people.EBF

FG.R. No. 13998*. M$r36 31, 2++5.

SAL<ADOR D. "LOR, petitioner, #HILI##INES, respondent. DECISION CHICO;NAZARIO, J.H

vs. #EO#LE

O"

!HE

Jefore 2s is a petition for review on certiorari see0ing to reverse the Decision of the Court of Appeals in CA5".R. CR 4os. ))INN and BB;*: E)F which affirmed the Aoint decision of the Regional Trial Court ,RTC-, Jranch BB of 'ili, Camarines Sur, in Criminal Case 4o. '5)=II convicting the petitioner and 4ic0 Ramos E;F for libel and Civil Case 4o. '5)(N; awarding damages in favor of the private complainant, former "overnor of Camarines Sur and /inister of the 'residential Commission on "overnment Reorganization 9uis R. @illafuerte. The facts are not disputed. An information for libel was filed before the RTC, Jranch ;*, 4aga City, against the petitioner and Ramos who were then the managing editor and correspondent, respectively, of the Jicol ?orum, a local wee0ly newspaper circulated in the Jicol Region. The information reads as follows+ That on or about the )= th day up to the ;:th day of August, )<=(, in the Jicol Region comprised by the 'rovinces of Albay, Catanduanes, Sorsogon, /asbate, Camarines Sur, and Camarines 4orte, and the Cities of &riga and 4aga, 'hilippines, and within the Aurisdiction of this 1onorable Court under R.A. 4o. :B(B, and J.'. Jlg. );<, the above5named accused who are the news correspondent and the managing editor,

The information was later amended to include Dose Jurgos, Dr., who was at that time the publisher5editor of the Jicol ?orum. E:F The trial court, however, never ac>uired Aurisdiction over his person as he did not surrender nor was he ever arrested by the authorities. &t appears from the records that prior to the filing of the criminal complaint, the private complainant had already instituted a separate civil action for damages arising out of the >uestioned news article before the RTC, Jranch ;B, 4aga City. Due to this, the criminal suit for libel was ordered consolidated with the civil case pursuant to Article B(* of the Revised 'enal Code, as amended. EIF Subse>uently, the consolidated actions were transferred to RTC, Jranch BB, 'ili, Camarines Sur, in accordance with Republic Act 4o. :B(B which outlines the venue of libel cases in the event that the offended party is a public official such as in this case. E(F Thereafter, a Aoint trial of the cases ensued with accused Jurgos, Dr., being declared as in default in the civil case due to his failure to attend its pre5trial conference. 2pon being arraigned, the petitioner and Ramos both pleaded not guilty. ENF During the trial, the private complainant himself too0 the witness stand to refute the statements contained in the subAect news article. According to him, there were previous news reports and broadcasts regarding the cash advances allegedly made by some provincial government officials of Camarines Sur and that it was also reported that he made a trip to Dapan which was branded as a mere OAun0et.Q E=FThe private complainant, however, e$plained that after he clarified over the radio that he never went to Dapan, the issue was never discussed again until the matter was included in the >uestioned news item.E<F As for the cash advances, the private complainant stated that the 'rovincial Auditor and the Judget 6fficer had already made a statement Oto the effect that he had no pending cash advances.Q E)*F?urther, the private complainant clarified that he made his trip to &srael in his capacity as a cabinet member of former 'resident Corazon C. A>uino and that he spent his own money for the said official trip thereby debun0ing Jicol ?orumLs report that his travel to &srael was purely a Aun0et.E))F The private complainant also complained that no one from the Jicol ?orum made any attempt to get his side of the story nor was he aware of any effort e$erted by the representatives of said publication to confirm the veracity of the contents of the subAect news article from any source at the provincial capitol.E);F ?inally, the private complainant too0 e$ception to the banner headline which states O@illafuerteLs Denial Convinces 4o 6ne.Q According to him, the Jicol ?orum seemed to be ma0ing a moc0ery of his previous e$planations regarding the cash advances and his trips abroad and such a sweeping statement subAected him to public ridicule and humiliation.E)BF 6n the other hand, Ramos testified that he wrote the >uestioned news item on the basis of a note given to him by a source whom he refused to identify. E):F Said source was allegedly connected with the 'rovincial TreasurerLs 6ffice. E)IF The note reads+

/edia consultants of @illafuerte specially D79@ announcers had been announcing the travels of @illafuerte to &srael and Dapan without spending a single centavo. This is unbelievable as lately the "ov. said he EspentF his own money for the trips. 4o one will believe this. The governor and party went to &srael and Dapan as there were some 'N**,***.** cash advances collected in form of advances by top provincial officials for the trips. 4o EdoubtF @illafuerte had a hand on this because he is the governor approving cash advances. Among them were 'anes and /aceda. There were no resolution, please publish this that people concern will react and they be forced to account for the money. Authenticated papers will follow. JullLs eye ito. caprE)(F Ramos li0ewise alleged that prior to writing the subAect news article, he went to his source to as0 some clarificatory >uestions and was told that he would be given authenticated records of the cash advances. 9ater, he was given a copy of the Schedule of Cash Advances of Disbursing 6fficers and 6ther 6fficers ,as of Dune B* )<=N-.E)NF Among the provincial government officials listed therein were the private respondent who had a )<=( balance of ';I,***.** incurred for cultural activitiesC Atty. Dose /aceda who also had a )<=( balance of ')B*,*=:.** for sports development, 6peration Smile, 4A/CHA ?estival, and prisonersL subsistenceC and !ulogio 'anes, Dr., who had beside his name a )<=( balance of ';I*,*** for the purpose of sports development. Ramos also claimed that when he went to the 'rovincial TreasurerLs 6ffice to conduct his investigation, he was shown some vouchers and was told that many of the members of the baseball delegation to Dapan were not elected provincial officials and, in fact, some mayors and private individuals were sent as part of the 'hilippine group. E)=F During his turn at the witness stand, the petitioner admitted that the headline was written by him in his capacity as the managing editor E)<F in accordance with the policy of their paper to print as headlines matters dealing with public concerns and public officials.E;*F According to him, the banner headline and the sub5headline truthfully reflect the substance of the story prepared by Ramos.E;)F After the trial, the court a 5uo rendered a Aoint decision the dispositive portion of which reads+ &4 @&!7 6? A99 T1! ?6R!"6&4" C64S&D!RAT&64S, Audgment is hereby rendered+ &n Criminal Case 4o. '5)=II ?inding the accused 4ic0 Ramos and Salvador D. ?lor guilty beyond reasonable doubt of the crime of 9ibel defined and punished under Article BIB in connection

with Article BII of the Revised 'enal Code and they are each sentenced to pay a fine of Two Thousand 'esos ,';,***.**- with subsidiary imprisonment in case of insolvencyC and to pay the costs of suit. &n Civil Case 4o. '5)(N; 6rdering the defendants 4ic0 Ramos, Salvador D. ?lor and Dose Jurgos, Dr. to pay Aointly and severally to the plaintiff the following+ ). The amount of Three 1undred Thousand 'esos ,'B**,***.**- as moral damagesC The amount of ?ive Thousand 'esos ,'I,***.**- as e$emplary damagesC The amount of ?ive Thousand 'esos ,'I,***.**- as attorneyLs feesC and to pay the costs of suit.E;;F

9ibel is defined as Oa 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 Auridical person, or to blac0en the memory of one who is dead.Q E;NF Any of these imputations is defamatory and under the general rule stated in Article BI: of the Revised 'enal Code, every defamatory imputation is presumed to be malicious. E;=F The presumption of malice, however, does not e$ist in the following instances+ ). A private communication made by any person to another in the performance of any legal, moral, or social dutyC and ;. A fair and true report, made in good faith, without any comments or remar0s, of any Audicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the e$ercise of their functions.E;<F The law recognizes two 0inds of privileged matters. ?irst are those which are classified as a!solutel& ri#ilege" which enAoy immunity from libel suits regardless of the e$istence of malice in fact. &ncluded herein are statements made in official proceedings of the legislature by the members thereof. EB*F 9i0ewise, statements made in the course of Audicial proceedings are absolutely privileged but only if pertinent or relevant to the case involved.EB)F The other 0ind of privileged matters are the 5uali%ie"l& or con"itionall& ri#ilege" communications which, unli0e the first classification, may be susceptible to a finding of libel provided the prosecution establishes the presence of malice in fact. The e$ceptions provided for in Article BI: of the Revised 'enal Code fall into this category. &n the case, however, of Bor9al #) Court o% A eals,EB;F this Court recognized that the enumeration stated in Article BI: of the Revised 'enal Code is not e$clusive but is rendered more e$pansive by the constitutional guarantee of freedom of the press, thus+ . . . To be sure, the enumeration under Art. BI: is not an e$clusive list of >ualifiedly privileged communications since fair commentaries on matters of public interest are li0ewise privileged. The rule on privileged communications had its genesis not in the nationLs penal code but in the Jill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as )<)=, in ;nite" States #) Ca:ete EB= 'hil. ;IBF, this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it e$press recognition in the statute punishing libels.EBBF Clearly, when confronted with libel cases involving publications which deal with public officials and the discharge of their official functions, this Court is not

;.

B.

2nsatisfied with the findings of the trial court, the petitioner and Ramos filed an appeal with the Court of Appeals which affirmed the Audgment of the trial court through its decision dated )* December )<<(.E;BF They thereafter filed a motion for reconsiderationE;:F which was denied for lac0 of merit by the appellate court in its resolution of )< August )<<<.E;IF &n upholding the conclusion reached by the trial court, the Court of Appeals ratiocinated, thus+ The informant of 4ic0 Ramos made a sweeping conclusion that it was "ov. @illafuerte who made the trips abroad using government money as there were cash advances of 'N**,***.** made by top provincial officials, without first having verified the truth about the matters contained in his report. The imputation became malicious when they are based on mere conAectures. The alleged libelous article must be construed as a whole. The effect of the news item upon the minds of the readers must be considered in the prosecution of libel cases. The words used in the news report tends to impute a criminal act on the governor which may cause the readers to hold him up to public ridicule and induce them to believe that the governor was indeed guilty. The accused editor admitted that he did not ma0e any personal investigation as to the truth of the statements made in the report. 7hen such communication was sent for publication, the so5called privilege was destroyed when malice in fact was present.E;(F &n fine, the sole issue brought for the consideration of this Court is whether the >uestioned news item is libelous. 7e reverse.

confined within the wordings of the libel statuteC rather, the case should li0ewise be e$amined under the constitutional precept of freedom of the press. As enunciated in the seminal case of ;nite" States #) BustosEB:F 5 The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. /en in public life may suffer under a hostile and an unAust accusationC the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin5s0inned with reference to comment upon his official acts. 6nly thus can the intelligence and dignity of the individual be e$alted. 6f course, criticism does not authorize defamation. 4evertheless, as the individual is less than the State, so must e$pected criticism be born for the common good. Rising superior to any official, or set of officials, to the Chief !$ecutive, to the 9egislature, to the Dudiciary U to any or all the agencies of "overnment U public opinion should be the constant source of liberty and democracy. EBIF 6f course, this does not mean that a public official is barred from recovering damages in cases involving defamations. 1is entitlement, however, is limited to instances when the defamatory statement was made with actual malice U that is, with 0nowledge that it was false or with rec0less disregard of whether it was false or not. EB(F This is the test laid down in the leading case of New ?ork Times Co) #) Sulli#an.EBNF &n the case at bar, the 6ffice of the Solicitor "eneral ,6S"- argues that the purported libelous news item was Odesigned to malign the integrity and reputation of the Eprivate complainantFQ for it ascribed to the latter corruption and dishonesty in government service.EB=F /oreover, the 6S" maintains that the >uestioned news article does not enAoy the mantle of protection afforded a privileged matter as the petitioner and Ramos published the news item based on mere speculation and conAecture.EB<F Their decision to publish the unverified information furnished them by the unnamed source, who was never presented before the trial court, and their failure to verify the truth of statements which appeared under the banner headline of the )=5 ;: August )<=( issue of the Jicol ?orum indicates that the news item was published Ointemperately and maliciously.Q E:*F The 6S" is therefore of the opinion that the subAect news item satisfied the test pronounced in the New ?ork Times case. 7e do not agree. As the 2S Supreme Court itself declared, Orec0less disregard T cannot be fully encompassed in one infallible definition. &nevitably its outer limits will be mar0ed out through case5by5case adAudication.Q E:)F The case of (arrison #) State o% 1ouisianaE:;F stressed that Oonly those false statements made with the high degree of awareness of their probable falsity demanded by New ?ork Timesmay be the subAect of either civil or criminal sanctionsQ E:BF and concluded by restating the Orec0less disregard standardQ in the following manner+

. . . The test which we laid down in 4ew Hor0 Times is not 0eyed to ordinary careC defeasance of the privilege is conditioned, not on mere negligence, but on rec0less disregard for the truth.E::F Subse>uently, in St) Amant #) Thom sonE:IF it was stated that U . . . These cases are clear that rec0less conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. 'ublishing with such doubts shows rec0less disregard for truth or falsity and demonstrates actual malice. E:(F Applied to the case at bar, we hold that the prosecution failed to meet the criterion of Orec0less disregard.Q As the records reveal, the issue of cash advances against the coffers of the provincial government of Camarines Sur was a maAor political topic in said locality at that time. !ven the private respondent himself admitted during his direct testimony that he went on radio in order to address the matter. &t was clearly a legitimate topic to be discussed not only by the members of the media but by the public as what was involved was the dispensation of ta$payersL money. ?urther, it bears emphasis that in this case, the petitioner and Ramos had in their possession information relating to the cash advances and the private respondentLs travels abroad. The information was provided by one who wor0ed in the provincial treasurerLs office and had access to the pertinent financial records of the provincial government. Their informant was familiar with the procedure with regard to the approval of cash advances. The inference they drew from the note given by their source that the private respondent prodded some of the provincial government officials to ta0e out cash advances may have been false but the same does not warrant a conviction for libel nor support a claim for damages. As discussed by Newell U Slight unintentional errors, however, will be e$cused. &f a writer in the course of temperate and legitimate criticism falls into error as to some detail, or draws an incorrect inference from the facts before him, and thus goes beyond the limits of strict truth, such inaccuracies will not cause Audgment to go against him, if the Aury are satisfied, after reading the whole publication, that it was written honestly, fairly and with regard to what truth and Austice re>uire. O&t is not to be e$pected that a public Aournalist will always be infallible.QE:NF During the hearing of these cases, the private complainant also refuted the material points contained in the subAect news article in an effort to prove the falsity of the allegations contained therein. This Court finds such effort inade>uate to adAudge the petitioner guilty of the crime of libel or to entitle the private respondent to damages. 2nder the New ?ork Times test, false statements alone are not

actionableC maliciousness may be shown only through 0nowledge of falsity or rec0less disregard of truth or falsity. E:=F ?urther, both the prosecution and the 6S" ma0e capital of Ramos and the petitionerLs failure to confirm the information supplied by the unidentified source which ultimately became the basis for the news article under consideration in an obvious attempt to establish the element of Orec0less disregard for truth.Q The prosecution also painsta0ingly tried to establish malice in fact on the part of the petitioner by harping on the fact that neither he nor Ramos too0 the time to give the private respondent the chance to air his side before putting the alleged libelous news story to print. The contention fails to persuade. 7hile 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 Ohigh degree of awareness of EitsF probable falsity.Q E:<F The prosecution, in this case, utterly failed to prove that the petitioner and Ramos entertained such awareness. 7e also hold that the petitionerLs and RamosLs failure to present their informant before the court as well as other evidence that would prove RamosL claim that he had conducted an investigation to verify the information passed on to him should not be ta0en against them. 6n this point, we turn to our pronouncement in the case of Ro"ol%o R) 2as5ue$ #) Court o% A eals, et al),EI*F to wit+ A rule placing on the accused the burden of showing the truth of allegations of official misconduct andPor good motives and Austifiable ends for ma0ing such allegations would not only be contrary to Art. B() of the Revised 'enal Code. &t would, above all, infringe on the constitutionally guaranteed freedom of e$pression. Such a rule would deter citizens from performing their duties as members of a self5 governing community. 7ithout free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Dustice Jrandeis has said, Opublic discussion is a political dutyQ and Othe greatest menace to freedom is an inert people.QEI)F &ndeed, the difficulty of producing evidence, both documentary and testimonial, on behalf of the petitioner was readily apparent when, during his cross5e$amination, Ramos testified that he was not allowed by the custodians of the material provincial financial records to photocopy the latter particularly because said documents dealt with the matter of cash advances.EI;F ?urther, as their informant was employed in the provincial treasurerLs office, it is understandable why he opted not to e$pose himself and openly charge his superior, the private complainant herein, lest he incur the latterLs wrath. ?inally, the private respondent claims that the banner headline ridiculed him before the public does not merit consideration as the rule in this Aurisdiction is that

OEtFhe headline of a newspaper story or publication claimed to be libelous must be read and construed in connection with the language that follows.Q EIBF A perusal of the entire news story accompanying the headline in this case readily establishes the fact that the >uestioned article dealt with refutations by the private respondentLs critics of his e$planation over the radio with regard to the issues mentioned therein. The wording of the headline may have contained an e$aggeration but the same nevertheless represents a fair inde$ of the contents of the news story accompanying it.EI:F /HERE"ORE, the petition is "RA4T!D. The Decision of the Court of Appeals of )* December )<<( which affirmed the Doint Decision dated )= /arch )<<) of the Regional Trial Court, Jranch BB, 'ili, Camarines Sur, and its Resolution of )< August )<<< denying reconsideration are R!@!RS!D and S!T AS&D!. 4o costs. SO ORDERED.

obAections raised. Thus the relevance of this constitutional command+ %Arts and letters shall be under the patronage of the State. 2 The principal petitioner is Dose Antonio 2. "onzalez, 3 'resident of the /alaya ?ilms, a movie production outfit duly registered as a single proprietorship with the Jureau of Domestic Trade. The respondent is the Joard of Review for /otion 'ictures and Television, with /aria 3alaw 3atigba0 as its Chairman and Jrig. "en. 7ilfredo C. !strada as its @ice5Chairman, also named respondents. &n a resolution of a sub5committee of respondent Joard of 6ctober ;B, )<=:, a permit to e$hibit the film 3apit sa 'atalim under the classification %?or Adults 6nly,% with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by petitioners stating that the classification of the film %?or Adults 6nly% was without basis. ( Then on 4ovember );, )<=:, respondent Joard released its decision+ %Acting on the applicant#s /otion for Reconsideration dated ;< 6ctober )<=:, the Joard, after a review of the resolution of the sub5committee and an e$amination of the film, Resolves to affirm in toto the ruling of the sub5 committee. Considering, however, certain vital deficiencies in the application, the Joard further Resolves to direct the Chairman of the Joard to 7ithheld the issuance of the 'ermit to e$hibit until these deficiencies are supplied. 5 1ence this petition. This Court, in a resolution of Danuary );, )<=I, re>uired respondent to answer. &n such pleading submitted on Danuary ;), )<=I, as one of its special and affirmative defenses, it was alleged that the petition is moot as %respondent Joard has revo0ed its >uestioned resolution, replacing it with one immediately granting petitioner company a permit to e$hibit the film 3apit without any deletion or cut Ethus anF adAudication of the >uestions presented above would be academic on the case.% ) ?urther+ %The modified resolution of the Joard, of course, classifies 3apit as for5adults5only, but the petition does not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part of the Joard#s action are the deletions ordered in the film. * The prayer was for the dismissal of the petition. An amended petition was then filed on Danuary ;I, )<=I. The main obAection was the classification of the film as %?or Adults 6nly.% ?or petitioners, such classification %is without legal and factual basis and is e$ercised as impermissible restraint of artistic e$pression. The film is an integral whole and all its portions, including those to which the Joard now offers belated obAection, are essential for the integrity of the film. @iewed as a whole, there is no basis even for the vague speculations advanced by the Joard as basis for its classification. 8 There was an answer to the amended petition filed on ?ebruary )=, )<=I. &t was therein asserted that the issue presented as to the previous deletions ordered by the Joard as well as the statutory provisions for review of films and as to the re>uirement to submit the master negative have been all rendered moot. &t was also submitted that the standard of the law for classifying films afford a practical and determinative yardstic0 for the e$ercise of Audgment. ?or

G.R. No. L;)95++ 5,1- 22, 1985 5OSE AN!ONIO . GONZALEZ 0% be6$19 o9 MALA2A "ILMS, LINO BROC'A, 5OSE ". LACABA, $%& D LCE M. SAG ISAG, petitioners, vs. CHAIRMAN MARIA 'ALA/ 'A!IGBA', GENERAL /IL"REDO C. ES!RADA ?Ret.@, $%& !HE BOARD O" RE<IE/ "OR MO!ION #IC! RES AND !ELE<ISION ?BRM#!@, respondents. Irene R) Cortes, Per%ecto 2) Fernan"e$, 3a&"ee ?orac an" +oker P) Arro&o %or etitioners) The Solicitor (eneral %or res on"ents)

"ERNANDO, C.J.: &n this case of first impression, a certiorari proceeding filed on Danuary )*, )<=I, there is a persuasive ring to the invocation of the constitutional right to freedom of e$pression 1 of an artist.and for that matter a man of letters too.as the basis for a ruling on the scope of the power of respondent Joard of Review for /otion 'ictures and Television and how it should be e$ercised. The dispute between the parties has been narrowed down. The motion picture in >uestion, /a it sa Patalim was classified %?or Adults 6nly.% There is the further issue then, also one of first impression, as to the proper test of what constitutes obscenity in view of the

respondents, the >uestion of the sufficiency of the standards remains the only >uestion at issue. &t would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Joard in the e$ercise of its power. !ven if such were the case, there is Austification for an in>uiry into the controlling standard to warrant the classification of %?or Adults 6nly.% This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of artistic and literary e$pression embraced in the free speech and free press guarantees of the Constitution. ). /otion pictures are important both as a medium for the communication of &deas and the e$pression of the artistic impulse. Their effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is considerable. 4or as pointed out in Burst&n #) 0ilson 9 is the %importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform. 1+ There is no clear dividing line between what involves 0nowledge and what affords pleasure. &f such a distinction were sustained, there is a diminution of the basic right to free e$pression. 6ur recent decision in Re&es #) Bagatsing 11 cautions against such a move. 'ress freedom, as stated in the opinion of the Court, %may be &dentified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 12 This is not to say that such freedom, as is the freedom of speech, absolute. &t can be limited if %there be a #clear and present danger of a substantive evil that Ethe StateF has a right to prevent. 13 ;. Censorship or previous restraint certainly is not all there is to free speech or free press. &f it were so, then such basic rights are emasculated. &t is however, e$cept in e$ceptional circumstances a sine 5ua non for the meaningful e$ercise of such right. This is not to deny that e>ually basic is the other important aspect of freedom from liability. 4onetheless, for the purposes of this litigation, the emphasis should rightly be on freedom from censorship. &t is, beyond >uestion, a well5settled principle in our Aurisdiction. As early as )<*<, in the case of ;nite" States #) Se"ano, 1( a prosecution for libel, the Supreme Court of the 'hilippines already made clear that freedom of the press consists in the right to print what one chooses without any previous license. There is reaffirmation of such a view in Mutuc #) Commission on 6lections, 15 where an order of respondent Commission on !lections giving due course to the certificate of candidacy of petitioner but prohibiting him from using Aingles in his mobile units e>uipped with sound systems and loud spea0ers was considered an abridgment of the right of the freedom of e$pression amounting as it does to censorship. &t is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Joard is limited to the classification of films. &t can, to safeguard other constitutional obAections, determine what motion pictures are for general patronage and what may re>uire either parental guidance or be limited to adults only. That is to abide by the principle that freedom of e$pression is the rule

and restrictions the e$emption. The power to e$ercise prior restraint is not to be presumed, rather the presumption is against its validity. 1) B. The test, to repeat, to determine whether freedom of e$cession may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the e$pression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. 4or does it suffice if such danger be only probable. There is the re>uire of its being well5nigh inevitable. The basic postulate, wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts, television programs, and other such media of e$pression are concerned . included as they are in freedom of e$pression . censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest. 1* There is merit to the observation of Dustice Douglas that %every writer, actor, or producer, no matter what medium of e$pression he may use, should be freed from the censor. 18 :. The law, however, frowns on obscenity and rightly so. As categorically stated by +ustice Brennan in Roth #) ;nite" States 19 spea0ing of the free speech and press guarantee of the 2nited States Constitution+ %All &deas having even the slightest redeeming social importance . unorthodo$ &deas, controversial &deas, even &deas hateful to the prevailing climate of opinion . have the full protection of the guaranties, unless e$cludable because they encroach upon the limited area of the ?irst Amendment is the reAection of obscenity as utterly without redeeming social importance. 2+ Such a view commends itself for approval. I. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth+ %The early leading standard of obscenity allowed material to be Audged merely by the effect of an isolated e$cerpt upon particularly susceptible persons. Regina #) 3icklin E)=(=F 9R B J B(*. Some American courts adopted this standard but later decisions have reAected it and substituted this test+ whether to the average person, applying contemporary community standards, the dominant theme of the material ta0en as a whole appeals to prurient interest. The 1ic0lin test, Audging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with se$, and so it must be reAected as unconstitutionally restrictive of the freedoms of speech and press. 6n the other hand, the substituted standard provides safeguards ade>uate to withstand the charge of constitutional infirmity. 21 (. The above e$cerpt which imposes on the Audiciary the duty to be ever on guard against any impermissible infringement on the freedom of artistic e$pression calls to mind the landmar0 ponencia of Dustice /alcolm in ;nite" States #)

Bustos, 22 decided in )<)=. 7hile recognizing the principle that libel is beyond the pale of constitutional protection, it left no doubt that in determining what constitutes such an offense, a court should ever be mindful that no violation of the right to freedom of e$pression is allowable. &t is a matter of pride for the 'hilippines that it was not until )<=: in New ?ork Timer #) Sulli#an, 23 thirty5years later, that the 2nited States Supreme Court enunciated a similar doctrine. N. &t is >uite understandable then why in the Roth opinion, Dustice Jrennan too0 pains to emphasize that %se$ and obscenity are not synonymous. 2( ?urther+ %6bscene material is material which deals with se$ in a manner appealing to prurient interest. The portrayal of se$, e.g., in art, literature and scientific wor0s, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Se$, a great and mysterious motive force in human life has indisputably been a subAect of absorbing interest to man0ind through the agesC it is one of the vital problems of human interest and public concern. 25 =. &n the applicable law, !$ecutive 6rder 4o. =N(, reference was made to respondent Joard %applying contemporary ?ilipino cultural values as standard, 2) words which can be construed in an analogous manner. /oreover, as far as the >uestion of se$ and obscenity are concerned, it cannot be stressed strongly that the arts and letters %shall be under the patronage of the State. 2* That is a constitutional mandate. &t will be less than true to its function if any government office or agency would invade the sphere of autonomy that an artist enAoys. There is no orthodo$y in what passes for beauty or for reality. &t is for the artist to determine what for him is a true representation. &t is not to be forgotten that art and !elleslettres deal primarily with imagination, not so much with ideas in a strict sense. 7hat is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be considered obscene. As so wen put by Dustice ?ran0furter in a concurring opinion, %the widest scope of freedom is to be given to the adventurous and imaginative e$ercise of the human spirit% 28 in this sensitive area of a man#s personality. 6n the >uestion of obscenity, therefore, and in the light of the facts of this case, such standard set forth in !$ecutive 6rder 4o. =N= is to be construed in such a fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision 29 citing the language of Dustice /alcolm in ?u Cong 6ng #) Trini"a", 3+ it is %an elementary, a fundamental, and a universal role of construction, applied when considering constitutional >uestions, that when a law is susceptible of two constructions# one of which will maintain and the other destroy it, the courts will always adopt the former. 31 As thus construed, there can be no valid obAection to the sufficiency of the controlling standard and its conformity to what the Constitution ordains. <. This being a certiorari petition, the >uestion before the Court is whether or not there was a grave abuse of discretion. That there was an abuse of discretion by respondent Joard is evident in the light of the difficulty and travail undergone by petitioners before /a it sa Patalim was classified as %?or Adults 6nly,% without any deletion or cut. /oreover its perception of what constitutes obscenity appears to be

unduly restrictive. This Court concludes then that there was an abuse of discretion. 4onetheless, there are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this e$planation of respondents in its Answer to the amended petition+ %The adult classification given the film serves as a warning to theater operators and viewers that some contents of 3apit are not fit for the young. Some of the scenes in the picture were ta0en in a theater5club and a good portion of the film shots concentrated on some women erotically dancing na0ed, or at least nearly na0ed, on the theater stage. Another scene on that stage depicted the women 0issing and caressing as lesbians. And toward the end of the picture, there e$ists scenes of e$cessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these scenes.% 32 ?urther+ %Respondents further stated in its answer that petitioner company has an option to have the film reclassified to ?or5"eneral5'atronage if it would agree to remove the obscene scenes and pare down the violence in the film.% 33 'etitioners, however, refused the %?or Adults 6nly% classification and instead, as noted at the outset, filed this suit for certiorari. )*. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. &t is the consensus of this Court that where television is concerned+ a less liberal approach calls for observance. This is so because unli0e motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will li0ely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Dudge Derome ?ran0, it is hardly the concern of the law to deal with the se$ual fantasies of the adult population. 3( it cannot be denied though that the State as arens atriae is called upon to manifest an attitude of caring for the welfare of the young. 71!R!?6R!, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification of /a it sa Patalim as %?or5Adults56nly.%

6n December ) and B, )<=B, pursuing an Anti5Smut Campaign initiated by the /ayor of the City of /anila, Ramon D. Jagatsing, elements of the Special Anti54arcotics "roup, Au$illiary Services Jureau, 7estern 'olice District, &4' of the /etropolitan 'olice ?orce of /anila, seized and confiscated from dealers, distributors, newsstand owners and peddlers along /anila sidewal0s, magazines, publications and other reading materials believed to be obscene, pornographic and indecent and later burned the seized materials in public at the 2niversity belt along C./. Recto Avenue, /anila, in the presence of /ayor Jagatsing and several officers and members of various student organizations. Among the publications seized, and later burned, was %'inoy 'layboy% magazines published and co5edited by plaintiff 9eo 'ita. 6n December N, )<=B, plaintiff filed a case for inAunction with prayer for issuance of the writ of preliminary inAunction against /ayor Jagatsing and 4arcisco Cabrera, as superintendent of 7estern 'olice District of the City of /anila, see0ing to enAoin andPor restrain said defendants and their agents from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational magazine which is not er seobscene, and that the publication is protected by the Constitutional guarantees of freedom of speech and of the press. Jy order dated December =, ) <=B the Court set the hearing on the petition for preliminary inAunction on December ):,)<=B and ordered the defendants to show cause not later than December )B, )<=B why the writ prayed for should not be granted. 6n December );, )<=B, plaintiff filed an 2rgent /otion for issuance of a temporary restraining order. against indiscriminate seizure, confiscation and burning of plaintiff#s %'inoy 'layboy% /agazines, pending hearing on the petition for preliminary inAunction in view of /ayor Jagatsing#s pronouncement to continue the Anti5Smut Campaign. The Court granted the temporary restraining order on December ):, )<=B. &n his Answer and 6pposition filed on December ;N,)<=B defendant /ayor Jagatsing admitted the confiscation and burning of obscence reading materials on December ) and B, )<=B, but claimed that the said materials were voluntarily surrendered by the vendors to the police authorities, and that the said confiscation and seizure was ,sic- underta0en pursuant to '.D. 4o. <(*, as amended

G.R. No. 8+8+) O3tober 5, 1989 LEO #I!A &o0%8 b,70%e77 ,%&er t6e %$me $%& 7t-1e o9 #INO2 #LA2BO2, petitioner, vs. !HE CO R! O" A##EALS, RAMON BAGA!SING, $%& NARCISO CABRERA, respondents. 0illiam C) Arceno %or etitioner) Casi!ang, Perello an" -e -ios %or ri#ate res on"ent)

SARMIEN!O, J.: The petitioner, publisher of Pino& Pla&!o&, a %men#s magazine%, see0s the review of the decision of the Court of Appeals, 1 reAecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for inAunctive relief. 1e invo0es, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as well as its prohibition against deprivation of property without due process of law. There is no controversy as to the facts. 7e >uote+

by '.D. 4o. <(<, which amended Article ;*) of the Revised 'enal Code. &n opposing the plaintiffs application for a writ of preliminary inAunction, defendant pointed out that in that anti5 smut campaign conducted on December ) and B, )<=B, the materials confiscated belonged to the magazine stand owners and peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment was not raided. The other defendant, 7'D Superintendent, 4arcisco Cabrera, filed no answer. 6n Danuary I,)<=:, plaintiff filed his /emorandum in support of the issuance of the writ of preliminary inAunction, raising the issue as to %whether or not the defendants andPor their agents can without a court order confiscate or seize plaintiffs magazine before any Audicial finding is made on whether said magazine is obscene or not%. The restraining order issued on December ):,)<=B having lapsed on Danuary B,)<=:, the plaintiff filed an urgent motion for issuance of another restraining order, which was opposed by defendant on the ground that issuance of a second restraining order would violate the Resolution of the Supreme Court dated Danuary )), )<=B, providing for the &nterim Rules Relative to the &mplementation of Jatas 'ambansa Jlg. );<, which provides that a temporary restraining order shall be effective only for twenty days from date of its issuance. 6n Danuary <, )<=: defendant filed his Comment andPor ReAoinder /emorandum in support of his opposition to the issuance of a writ of preliminary inAunction. 6n Danuary )), )<=:, the trial court issued an 6rder setting the case for hearing on Danuary )(, )<=: %for the parties to adduce evidence on the >uestion of whether the publication #'inoy 'layboy /agazine alleged ,sic- seized, confiscated andPor burned by the defendants, are obscence per se or not%. 6n Danuary )(, )<=:, the Court issued an order granting plaintiffs motion to be given three days %to file a reply to defendants# opposition dated Danuary <, )<=:, serving a copy thereof to the counsel for the defendants, who may file a reAoinder within the same period from receipt, after which the issue of 'reliminary &nAunction shall be resolved%.

'laintiff#s supplemental /emorandum was filed on Danuary )=, )<=:. Defendant filed his Comment on plaintiff s supplemental /emorandum on Danuary ;*, )<=:, and plaintiff filed his %Reply5 /emorandum% to defendants# Comment on Danuary ;I, )<=:. 6n ?ebruary B, )<=:, the trial court promulgated the 6rder appealed from denying the motion for a writ of preliminary inAunction, and dismissing the case for lac0 of merit. 2 The Appellate Court dismissed the appeal upon the grounds, among other things, as follows+ 7e cannot >uarrel with the basic postulate suggested by appellant that seizure of allegedly obscene publications or materials deserves close scrutiny because of the constitutional guarantee protecting the right to e$press oneself in print ,Sec. <, Art. &@-, and the protection afforded by the constitution against unreasonable searches and seizure ,Sec. B, Art.&@-. &t must be e>ually conceded, however, that freedom of the press is not without restraint as the state has the right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of obscene publications ,Sec. & , Art. ;*), Revised 'enal Code, as amended by '.D. 4o. <(* and '.D. 4o. <(<-. Also well settled is the rule that the right against unreasonable searches and seizures recognizes certain e$ceptions, as when there is consent to the search or seizure, ,'eople vs. /alesugui (B 'hil. ;;- or search is an incident to an arrest, ,'eople vs. @eloso, := 'hil. )(<C Alvero vs. Dizon, N( 'hil. (BN- or is conducted in a vehicle or movable structure ,See 'apa vs. /agno, ;; SCRA =IN-. 3 The petitioner now ascribes to the respondent court the following errors+ ). The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the police officers could without any court warrant or order seize and confiscate petitioner#s magazines on the basis simply of their determination that they are obscene. ;. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial court could dismiss the case on its merits without any hearing thereon when what was submitted to it for resolution was merely the application of petitioner for the writ of preliminary inAunction. (

The Court states at the outset that it is not the first time that it is being as0ed to pronounce what %obscene% means or what ma0es for an obscene or pornographic literature. !arly on, in Peo le #s) /ottinger, 5 the Court laid down the test, in determining the e$istence of obscenity, as follows+ %whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.% ) %Another test,% so /ottinger further declares, %is that which shoc0s the ordinary and common sense of men as an indecency. % * /ottinger hastened to say, however, that %EwFhether a picture is obscene or indecent must depend upon the circumstances of the case, 8 and that ultimately, the >uestion is to be decided by the %Audgment of the aggregate sense of the community reached by it.% 9 Het /ottinger, in its effort to arrive at a %conclusive% definition, succeeded merely in generalizing a problem that has grown increasingly comple$ over the years. 'recisely, the >uestion is+ 7hen does a publication ha#e a corrupting tendency, or when can it be said to be offensive to human sensibilities8 And obviously, it is to beg the >uestion to say that a piece of literature has a corrupting influence !ecause it is obscene, and #ice-#ersa. Apparently, /ottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a hypothetical %community standard% . whatever that is . and that the >uestion must supposedly be Audged from case to case. About three decades later, this Court promulgated Peo le #) (o Pin, 1+ a prosecution under Article ;*) of the Revised 'enal Code. (o Pin, was also even hazier+ ...7e agree with counsel for appellant in part. &f such pictures, sculptures and paintings are shown in art e$hibit and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. 1owever, the pictures here in >uestion were used not e$actly for art#s sa0e but rather for commercial purposes. &n other words, the supposed artistic >ualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. "ain and profit would appear to have been the main, if not the e$clusive consideration in their e$hibitionC and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not e$actly artists and persons interested in art and who generally go to art e$hibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love for e$citement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures. 11

$$$ $$$ $$$ As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. &t is easier said than done to say, indeed, that if %the pictures here in >uestion were used not e$actly for art#s sa0e but rather for commercial purposes,% 12 the pictures are not entitled to any constitutional protection. &t was Peo le #) Pa"an & Alo#a , 13 however, that introduced to 'hilippine Aurisprudence the %redeeming% element that should accompany the wor0, to save it from a valid prosecution. 7e >uote+ ...7e have had occasion to consider offenses li0e the e$hibition of still or moving pictures of women in the nude, which we have condemned for obscenity and as offensive to morals. &n those cases, one might yet claim that there was involved the element of artC that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human body e$hibited in sheer na0edness, as models in ta!leau* #i#ants. Jut an actual e$hibition of the se$ual act, preceded by acts of lasciviousness, can have no redeeming feature. &n it, there is no room for art. 6ne can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and e$erting a corrupting influence specially on the youth of the land. ... 1( Pa"an & Alo#a, li0e (o Pin, however, raised more >uestions than answers. ?or one thing, if the e$hibition was attended by %artists and persons interested in art and who generally go to art e$hibitions and galleries to satisfy and improve their artistic tastes,% 15 could the same legitimately lay claim to %art%8 ?or another, suppose that the e$hibition was so presented that %connoisseurs of EartF, and painters and sculptors might find inspiration,% 1) in it, would it cease to be a case of obscenity8 Pa"an & Alo#a, li0e (o Pin also leaves too much latitude for Audicial arbitrament, which has permitted an a" li! of &deas and %two5cents worths% among Audges as to what is obscene and what is art. &n a much later decision, (on$ale$ #) /alaw /atig!ak , 1* the Court, following trends in the 2nited States, adopted the test+ %7hether to the average person, applying contemporary standards, the dominant theme of the material ta0en as a whole appeals to prurient interest.% 18 /alaw-/atig!ak represented a mar0ed departure from /ottingerin the sense that it measured obscenity in terms of the %dominant theme% of the wor0, rather than isolated passages, which were central to /ottinger ,although both cases are agreed that %contemporary community standards% are the final arbiters of what is %obscene%-. /alaw-/atig!ak undertoo0 moreover to ma0e the determination of obscenity essentially a Audicial >uestion and

as a conse>uence, to temper the wide discretion /ottinger had given unto law enforcers. &t is significant that in the 2nited States, constitutional law on obscenity continues to Aourney from development to development, which, states one authoritative commentator ,with ample sarcasm-, has been as %unstable as it is unintelligible.% 19 Memoirs #) Massachusettes, 2+ a )<(( decision, which characterized obscenity as one %utterly without any redeeming social value,% 21 mar0ed yet another development. The latest word, however, is Miller #) Cali%ornia, 22 which e$pressly abandoned Massachusettes, and established %basic guidelines,% 23 to wit+ %,a- whether #the average person, applying contemporary standards# would find the wor0, ta0en as a whole, appeals to the prurient interest . . .C ,b- whether the wor0 depicts or describes, in a patently offensive way, se$ual conduct specifically defined by the applicable state lawC and ,c- whether the wor0, ta0en as a whole, lac0s serious literary, artistic, political, or scientific value.% 2( ,A year later, the American Supreme Court decided 3amling #) ;nite" States 25 which repeated Miller, an" +enkins #) (eorgia, 2) yet another reiteration of Miller) +enkins, curiously, ac>uitted the producers of the motion picture, Carnal /nowle"ge, in the absence of %genitals% portrayed on screen, although the film highlighted contemporary American se$uality.The lac0 of uniformity in American Aurisprudence as to what constitutes %obscenity% has been attributed to the reluctance of the courts to recognize the constitutional dimension of the problem . 2* Apparently, the courts have assumed that %obscenity% is not included in the guaranty of free speech, an assumption that, as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And %EtFhere is little li0elihood,% says Tribe, %that this development has reached a state of rest, or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is subAect . as in all speech . to regulation in the interests of Esociety as a wholeF . but not in the interest of a uniform vision of how human se$uality should be regarded and portrayed.% 28 &n the case at bar, there is no challenge on the right of the State, in the legitimate e$ercise of police power, to suppress smut provided it is smut. ?or obvious reasons, smut is not smut simply because one insists it is smut. So is it e>ually evident that individual tastes develop, adapt to wide5ranging influences, and 0eep in step with the rapid advance of civilization. 7hat shoc0ed our forebears, say, five decades ago, is not necessarily repulsive to the present generation. Dames Doyce and D.1. 9awrence were censored in the thirties yet their wor0s are considered important literature today. 29 "oya#s 1a Ma9a "esnu"a was once banned from public e$hibition but now adorns the world#s most prestigious museums.

Jut neither should we say that %obscenity% is a bare ,no pun intended- matter of opinion. As we said earlier, it is the divergent perceptions of men and women that have probably compounded the problem rather than resolved it. 7hat the Court is impressing, plainly and simply, is that the >uestion is not, and has not been, an easy one to answer, as it is far from being a settled matter. 7e share Tribe#s disappointment over the discouraging trend in American decisional law on obscenity as well as his pessimism on whether or not an %acceptable% solution is in sight. &n the final analysis perhaps, the tas0 that confronts us is less heroic than rushing to a %perfect% definition of %obscenity%, if that is possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaint specifically raised in the petition. 1owever, this much we have to say. 2ndoubtedly, %immoral% lore or literature comes within the ambit of free e$pression, although not its protection. &n free e$pression cases, this Court has consistently been on the side of the e$ercise of the right, barring a %clear and present danger% that would warrant State interference and action. 3+ Jut, so we asserted in Re&es #) Bagatsing, 31 %the !ur"en to show the e$istence of grave and imminent danger that would Austify adverse action ... lies on the. . . authoritEiesF.% 32 %There must be o!9ecti#e an" con#incing, not su!9ecti#e or con9ectural, roo% o% the e*istence o% such clear an" resent "anger.% 33 %&t is essential for the validity of ... previous restraint or censorship that the ... authority "oes not rel& solel& on his own a raisal o% what the u!lic wel%are, eace or sa%et& ma& re5uire.% 3( %To Austify such a limitation, there must be proof of such weight an" su%%icienc& to satis%& the clear an" resent "anger test.% 35 The above disposition must not, however, be ta0en as a neat effort to arrive at a solution5so only we may arrive at one5but rather as a serious attempt to put the >uestion in its proper perspective, that is, as a genuine constitutional issue. &t is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search and seizure. As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the speech may validly be said. The burden is on the State to demonstrate the e$istence of a danger, a danger that must not only be+ ,)clear but also, ,;- present, to Austify State action to stop the speech. /eanwhile, the "overnment must allow it ,the speech-. &t has no choice. 1owever, if it acts

notwithstanding that ,absence of evidence of a clear and present danger-, it must come to terms with, and be held accountable for, due process. The Court is not convinced that the private respondents have shown the re>uired proof to Austify a ban and to warrant confiscation of the literature for which mandatory inAunction had been sought below. ?irst of all, they were not possessed of a lawful court order+ ,)- finding the said materials to be pornography, and ,;authorizing them to carry out a search and seizure, by way of a search warrant. The Court of Appeals has no %>uarrel that ... freedom of the press is not without restraint, as the state has the right to protect society from pornographic literature that is offensive to public morals.% 3) 4either do we. Jut it brings us bac0 to s>uare one+ were the %literature% so confiscated %pornographic%8 That we have laws punishing the author, publisher and sellers of obscence publications ,Sec. ), Art. ;*), Revised 'enal Code, as amended by '.D. 4o. <(* and '.D. 4o. <(<-,% 3* is also fine, but the >uestion, again, is+ 1as the petitioner been found guilty under the statute8 The fact that the former respondent /ayor#s act was sanctioned by %police power% is no license to seize property in disregard of due process. &n Phili ine Ser#ice 6* orters, Inc) #) -rilon, 38 7e defined police power as %state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare .% 39 'residential Decrees 4os. <(* and <(< are, arguably, police power measures, but they are not, by themselves, authorities for high5handed acts. They do not e$empt our law enforcers, in carrying out the decree of the twin presidential issuances ,/r. /arcos#-, from the commandments of the Constitution, the right to due process of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for implementation. 7e >uote+ Sec. ;. -is osition o% the Prohi!ite" Articles . . The disposition of the literature, films, prints, engravings, sculptures, paintings, or other materials involved in the violation referred to in Section ) hereof ,Art. ;*)-, R'C as amended- shall be governed by the following rules+ ,a- 2pon conviction of the offender, to be forfeited in favor of the "overnment to be destroyed. ,b- 7here the criminal case against any violator of this decree results in an ac>uittal, the obscenePimmoral literature, films, prints, engravings, sculptures, paintings or other materials and articles involved in the violation referred to in Section ) ,referring to Art. ;*)- hereof shall nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the Chief of Constabulary.

,c- The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen ,)I- days after his receipt of a copy of the decision, appeal the matter to the Secretary of 4ational Defense for review. The decision of the Secretary of 4ational Defense shall be final and unappealable. ,Sec. ;, 'D 4o, <(* as amended by 'D 4o. <(<.Sec. :. Additional 'enalties. . Additional penalties shall be imposed as follows+ ). &n case the offender is a government official or employee who allows the violations of Section & hereof, the penalty as provided herein shall be imposed in the ma$imum period and, in addition, the accessory penalties provided for in the Revised 'enal Code, as amended, shall li0ewise be imposed . (+ 2nder the Constitution, on the other hand+ S!C. B. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue e$cept upon probable cause to be determined by the Audge, or such other responsible officer as may be authorized by law, after e$amination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. &t is basic that searches and seizures may be done only through a Audicial warrant, otherwise, they become unreasonable and subAect to challenge. &n Burgos #) Chie% o% Sta%%, AFP, (3 7e counter5minded the orders of the Regional Trial Court authorizing the search of the premises of 0e Forum and Metro olitan Mail, two /etro /anila dailies, by reason of a defective warrant. 7e have greater reason here to reprobate the >uestioned raid, in the complete absence of a warrant, valid or invalid. The fact that the instant case involves an obscenity rap ma0es it no different from Burgos, a political case, because, and as we have indicated, speech is speech, whether political or %obscene%. The Court is not ruling out warrantless searches, as the Rules of Court ,)<(: rev.,the Rules then prevailing-, provide+ S!C. );. Search without warrant o% ersonarreste") . A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. ((

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on account of a crime committed. 1ere, no party has been charged, nor are such charges being readied against any party, under Article ;*), as amended, of the Revised 'enal Code. 7e reAect outright the argument that %EtFhere is no constitutional nor legal provision which would free the accused of all criminal responsibility because there had been no warrant,% (5 and that %violation of penal law EmustF be punished.% () ?or starters, there is no %accused% here to spea0 of, who ought to be %punished%. Second, to say that the respondent /ayor could have validly ordered the raid ,as a result of an anti5 smut campaign- without a lawful search warrant because, in his opinion, %violation of penal laws% has been committed, is to ma0e the respondent /ayor Audge, Aury, and e$ecutioner rolled into one. And precisely, this is the very complaint of the petitioner. 7e ma0e this resume. ). The authorities must apply for the issuance of a search warrant from a Audge, if in their opinion, an obscenity rap is in orderC ;. The authorities must convince the court that the materials sought to be seized are %obscene%, and pose a clear and present danger of an evil substantive enough to warrant State interference and actionC B. The Audge must determine whether or not the same are indeed %obscene+% the >uestion is to be resolved on a case5to5case basis and on 1is 1onor#s sound discretion. :. &f, in the opinion of the court, probable cause e$ists, it may issue the search warrant prayed forC I. The proper suit is then brought in the court under Article ;*) of the Revised 'enal CodeC (. Any conviction is subAect to appeal. The appellate court may assess whether or not the properties seized are indeed %obscene%. These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code% (* or the Revised 'enal code . (8 71!R!?6R!, the petition is "RA4T!D. The decision of the respondent court is R!@!RS!D and S!T AS&D!. &t appearing, however, that the magazines subAect of

the search and seizure ave been destroyed, the Court declines to grant affirmative relief. To that e$tent, the case is moot and academic. S6 6RD!R!D.

That respondent /ayor has e$pressly stated his willingness to grant permits for peaceful assemblies at 'laza /iranda during Saturdays, Sundays and holidays when they would not cause unnecessarily great disruption of the normal activities of the community and has further offered Sun0en "ardens as an alternative to 'laza /iranda as the site of the demonstration sought to be held this afternoonC That e$periences in connection with present assemblies and demonstrations do not warrant the Court#s disbelieving respondent /ayor#s appraisal that a public rally at 'laza /iranda, as compared to one at the Sun0en "ardens as he suggested, poses a clearer and more imminent danger of public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such assemblies, and petitioner has manifested that it has no means of preventing such disordersC That, conse>uently, every time that such assemblies are announced, the community is placed in such a state of fear and tension that offices are closed early and employees dismissed, storefronts boarded up, classes suspended, and transportation disrupted, to the general detriment of the public+ That civil rights and liberties can e$ist and be preserved only in an order societyC The petitioner has failed to show a clear specific legal duty on the part of respondent /ayor to grant their application for permit unconditionallyC The Court resolved to D!4H the writ prayed for and to dismiss the petition.

G.R. No. L;31)8* "ebr,$r- 2), 19*+ NA<ARRO, petitioner, vs. CI!2 MA2OR AN!ONIO 5. <ILLEGAS, respondent. R!S692T&64

GEN!LEMEN: Nuote" hereun"er, %or &our in%ormation, is a resolution o% this Court o% e#en "ate + %&n Case ".R. 4o. 95B)(=N ,4avarro vs. @illegas-, the Court, after considering the pleadings and arguments of the parties, issued the following Resolution+ 7ithout preAudice to a more e$tended opinion and ta0ing into account the following considerations+ That respondent /ayor has not denied nor absolutely refused the permit sought by petitionerC That as stated in Primicias #) Fugoso, =* 'hil. NI, respondent /ayor possesses reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide ade>uate and proper policing to minimize the ris0s of disorder and maintain public safety and orderC

the local and foreign participants of such conference. There was li0ewise an assurance in the petition that in the e$ercise of the constitutional rights to free speech and assembly, all the necessary steps would be ta0en by it %to ensure a peaceful march and rally.% ( The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory inAunction on 6ctober ;*, )<=B was due to the fact that as of that date, petitioner had not been informed of any action ta0en on his re>uest on behalf of the organization to hold a rally. 6n 6ctober ;I, )<=B, the answer of respondent /ayor was filed on his behalf by Assistant Solicitor "eneral !duardo ". /ontenegro. 5 &t turned out that on 6ctober )<, such permit was denied. 'etitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for.% ) To be more specific, reference was made to persistent intelligence reports affirmEingF the plans of subversivePcriminal elements to infiltrate andPor disrupt any assembly or congregations where a large number of people is e$pected to attend.% * Respondent /ayor suggested, however, in accordance with the recommendation of the police authorities, that %a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured.% 8 The oral argument was heard on 6ctober ;I, )<=B, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory inAunction prayed for on the ground that there was no showing of the e$istence of a clear and present danger of a substantive evil that could Austify the denial of a permit. 6n this point, the Court was unanimous, but there was a dissent by Dustice A>uino on the ground that the holding of a rally in front of the 2S !mbassy would be violative of 6rdinance 4o. N;<I of the City of /anila. The last sentence of such minute resolution reads+ %This resolution is without preAudice to a more e$tended opinion.% 9 1ence this detailed e$position of the Court#s stand on the matter. ). &t is thus clear that the Court is called upon to protect the e$ercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is >uite e$plicit+ %4o law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the "overnment for redress of grievances.% 1+ ?ree speech, li0e free press, may be &dentified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subse>uent liability whether in libel suits, 12prosecution for sedition, 13 or action for damages, 1( or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that Ethe StateF has a right to prevent.% 1) ?reedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters 6f public concern. 1* &t is entitled to be accorded the utmost deference and respect. &t is hot to be limited,

G.R. No. L;)53)) No=ember 9, 1983 5OSE B.L. RE2ES, 0% be6$19 o9 t6e AN!I;BASES COALI!ION ?ABC@, petitioner, vs. RAMON BAGA!SING, $7 M$-or o9 t6e C0t- o9 M$%01$, respondent. 1oren$o M) Ta:a"a +ose 0) -iokno an" 3a&"ee B) ?orac %or etitioner) The Solicitor (eneral %or res on"ent)

"ERNANDO, C.J.:9:;.<=>ph?, This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent /ayor Ramon Jagatsing. 'etitioner, retired Dustice DJ 9. Reyes, on behalf of the Anti5Jases Coalition sought a permit from the City of /anila to hold a peaceful march and rally on 6ctober ;(, )<=B from ;+** to I+** in the afternoon, starting from the 9uneta, a public par0, to the gates of the 2nited States !mbassy, hardly two bloc0s away. 6nce there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the &nternational Conference for "eneral Disbarmament, 7orld 'eace and the Removal of All ?oreign /ilitary Jases held in /anila, would be presented to a representative of the !mbassy or any of its personnel who may be there so that it may be delivered to the 2nited States Ambassador. The march would be attended by

much less denied, e$cept on a showing, as #s the case with freedom of e$pression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 !ven prior to the )<BI Constitution, Dustice /aicolm had occasion to stress that it is a necessary conse>uence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Dustice Rutledge spea0ing for the maAority of the American Su reme Court Thomas #) Collins, 2+ it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not &dentical, are inseparable. the every case, therefo re there is a limitation placed on the e$ercise of this right, the Audiciary is called upon to e$amine the effects of the challenged governmental actuation. The sole Austification for a limitation on the e$ercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21 ;. 4owhere is the rationale that underlies the freedom of e$pression and peaceable assembly better e$pressed than in this e$cerpt from an opinion of Dustice ?ran0furter+ %&t must never be forgotten, however, that the Jill of Rights was the child of the !nlightenment. Jac0 of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. &t was in order to avert force and e$plosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. Jut utterance in a conte$t of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.% 22 7hat was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a conte$t of violence. &t must always be remembered that this right li0ewise provides for a safety valve, allowing parties the opportunity to give vent to their5views, even if contrary to the prevailing climate of opinion. ?or if the peaceful means of communication cannot be availed of, resort to non5peaceful means may be the only alternative. 4or is this the sole reason for the e$pression of dissent. &t means more than Aust the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. &ts value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of &deas. There are, of course, well5defined limits. 7hat is guaranteed is peaceable assembly. 6ne may not advocate disorder in the name of protest, much less preach rebellion under the cloa0 of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled out and outbrea0s of violence to be avoided. The utmost calm though is not re>uired. As pointed out in an early 'hilippine case, penned in )<*N to be precise, ;nite" States #) A ura"o+ 23 %&t is rather to be e$pected that more or less disorder will mar0 the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of e$citement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over

their irresponsible followers.% 2( &t bears repeating that for the constitutional right to be invo0ed, riotous conduct, inAury to property, and acts of vandalism must be avoided, To give free rein to one#s destructive urges is to call for condemnation. &t is to ma0e a moc0ery of the high estate occupied by intellectual liberty in our scheme of values. B. There can be no legal obAection, absent the e$istence of a clear and present danger of a substantive evil, on the choice of 9uneta as the place where the peace rally would start. The 'hilippines is committed to the view e$pressed in the plurality opinion, of )<B< vintage, of Dustice Roberts in 3ague #) CIO@ 25 7henever the title of streets and par0s may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public >uestions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the 2nited States to use the streets and par0s for communication of views on national >uestions may be regulated in the interest of allC it is not absolute, but relative, and must be e$ercised in subordination to the general comfort and convenience, and in consonance with peace and good orderC but it must not, in the guise of regulation, be abridged or denied. 2) The above e$cerpt was >uoted with approval in 'rimicias v. ?ugoso. 2* 'rimicias made e$plicit what was implicit in Munici alit& o% Ca#ite #) Ro9as,% 28 a )<)I decision, where this Court categorically affirmed that plazas or par0s and streets are outside the commerce of man and thus nullified a contract that leased 'laza Soledad of plaintiff5municipality. Reference was made to such plaza %being a promenade for public use,% 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public dar0 that is the 9uneta. :. 4either can there be any valid obAection to the use of the streets, to the gates of the 2S !mbassy, hardly two bloc05away at the Ro$as Joulevard. Primicias #) Fugoso has resolved any lur0ing doubt on the matter. &n holding that the then /ayor ?ugoso of the City of /anila should grant a permit for a public meeting at 'laza /iranda in uiapo, this Court categorically declared+ %6ur conclusion finds support in the decision in the case of 0illis Co* #s) State o% New 3am shire , B); 2.S., I(<. &n that case, the statute of 4ew 1ampshire '. 9. chap. ):I, section ;, providing that #no parade or procession upon any ground abutting thereon, shall #De permitted unless a special license therefor shall first be e$plained from the selectmen of the town or from licensing committee,# was construed by the Supreme Court of 4ew 1ampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the 2nited States, in its decision ,)<:)- penned by Chief Dustice 1ughes affirming the Audgment of the State Supreme Court, held that #a statute re>uiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing

authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, ... % 3+ 4or should the point made by Chief Dustice 1ughes in a subse>uent portion of the opinion be ignored, %Civil liberties, as guaranteed by the Constitution, imply the e$istence of an organized society maintaining public order without which liberty itself would be lost in the e$cesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. 7here a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted e$ercise of some civil right which in other circumstances would be entitled to protection.% 31 I. There is a novel aspect to this case, &f the rally were confined to 9uneta, no >uestion, as noted, would have arisen. So, too, if the march would end at another par0. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the 2nited States !mbassy at Ro$as Joulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti5Jases Coalition. The 'hilippines is a signatory of the @ienna Convention on Diplomatic Relations adopted in )<(). &t was concurred in by the then 'hilippine Senate on /ay B, )<(I and the instrument of ratification was signed by the 'resident on 6ctober )), )<(I, and was thereafter deposited with the Secretary "eneral of the 2nited 4ations on 4ovember )I. As of that date then, it was binding on the 'hilippines. The second paragraph of the Article ;; reads+ %;. The receiving State is under a special duty to ta0e appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. % 32 The Constitution %adopts the generally accepted principles of international law as part of the law of the land. ...% 33 To the e$tent that the @ienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 3( That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a Austification for the denial of the permit insofar as the terminal point would be the !mbassy. /oreover, respondent /ayor relied on 6rdinance 4o. N;<I of the City of /anila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred ,I**- feet from any foreign mission or chancery and for other purposes. 2nless the ordinance is nullified, or declared ultra #ires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. !ven if shown then to be applicable, that >uestion the confronts this Court.

(. There is merit to the observation that e$cept as to the novel aspects of a litigation, the Audgment must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. 1ence, as noted, on the afternoon of the hearing, 6ctober ;I, )<=B, this Court issued the minute resolution granting the mandatory inAunction allowing the proposed march and rally scheduled for the ne$t day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no Austification then to deny the e$ercise of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the 2niversal Declaration of 1uman Rights. 35 The participants to such assembly, composed primarily of those in attendance at the &nternational Conference for "eneral Disbarmament, 7orld 'eace and the Removal of All ?oreign /ilitary Jases would start from the 9uneta. proceeding through Ro$as Joulevard to the gates of the 2nited States !mbassy located at the same street. To repeat, it is settled law that as to public places, especially so as to par0s and streets, there is freedom of access. 4or is their use dependent on who is the applicant for the permit, whether an individual or a group. &f it were, then the freedom of access becomes discriminatory access, giving rise to an e>ual protection >uestion. The principle under American doctrines was given utterance by Chief Dustice 1ughes in these words+ %The >uestion, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purposeC not as to The relations of the spea0ers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.% 3)There could be danger to public peace and safety if such a gathering were mar0ed by turbulence. That would deprive it of its peaceful character. !ven then, only the guilty parties should be held accountable. &t is true that the licensing official, here respondent /ayor, is not devoid of discretion in determining whether or not a permit would be granted. &t is not, however, unfettered discretion. 7hile prudence re>uires that there be a realistic appraisal not of what may possibly occur but of what may ro!a!l& occur, given all the relevant circumstances, still the assumption . especially so where the assembly is scheduled for a specific public . place is that the permit must be for the assembly being held there. The e$ercise of such a right, in the language of Dustice Roberts, spea0ing for the American Supreme Court, is not to be %abridged on the plea that it may be e$ercised in some other place.%3* N. &n fairness to respondent /ayor, he acted on the belief that Na#arro #) 2illegas 38 and Pagkakaisa ng Manggagawang Pili ino 7PMP)8 #) Bagatsing, 39 called for application. 7hile the "eneral rule is that a permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. &n the 4avarro and the 'ag0a0aisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is >uite different. 1ence the decision reached by the Court. The mere assertion that subversives may infiltrate the ran0s of the demonstrators does not suffice. 4ot that it should be overloo0ed. There was in this case, however, the assurance of "eneral 4arciso Cabrera,

Superintendent, 7estern 'olice District, /etropolitan 'olice ?orce, that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to e$tend protection to the participants of such peaceable assembly. Also from him came the commendable admission that there were the least five previous demonstrations at the Jayview hotel Area and 'laza ?erguson in front of the 2nited States !mbassy where no untoward event occurred. &t was made clear by petitioner, through counsel, that no act offensive to the dignity of the 2nited States /ission in the 'hilippines would ta0e place and that, as mentioned at the outset of this opinion, %all the necessary steps would be ta0en by it #to ensure a peaceful march and rally.# % (+Assistant Solicitor "eneral /ontenegro e$pressed the view that the presence of policemen may in itself be a provocation. &t is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Dustice 1ughes in Co$ that precisely, it is the duty of the city authorities to provide the proper police protection to those e$ercising their right to peaceable assembly and freedom of e$pression. =. Jy way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will ta0e place. &f it were a private place, only the consent of the owner or the one entitled to its legal possession is re>uired. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid obAections to the grant of the permit or to its grant but at another public place. &t is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. &f he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper Audicial authority. ?ree speech and peaceable assembly, along with the other intellectual freedoms, are highly ran0ed in our scheme of constitutional values. &t cannot be too strongly stressed that on the Audiciary, . even more so than on the other departments . rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. 4o verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Dustice 1olmes %as the sovereign prerogative of Audgment.% 4onetheless, the presumption must be to incline the weight of the scales of Austice on the side of such rights, enAoying as they do precedence and primacy. Clearly then, to the e$tent that there may be inconsistencies between this resolution and that of Na#arro #) 2illegas, that case is ro tanto modified. So it was made clear in the original resolution of 6ctober ;I, )<=B. <. Respondent /ayor posed the issue of the applicability of 6rdinance 4o. N;<I of the City of /anila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred ,I**- feet from any foreign mission or chancery and for other purposes. &t is to be admitted that it finds support &n the previously >uoted Article ;; of the @ienna Convention on Diplomatic Relations. There was no

showing, however, that the distance between the chancery and the embassy gate is less than I** feet. !ven if it could be shown that such a condition is satisfied. it does not follow that respondent /ayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. &t could be argued that a case of unconstitutional application of such ordinance to the e$ercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than I** feet, the need to pass on that issue was obviated, Should it come, then the >ualification and observation of Dustices /a0asiar and 'lana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. )*. 6rdinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order the respondent official, to grant it. 4onetheless, as there was urgency in this case, the proposed march and rally being scheduled for the ne$t day after the hearing, this Court. in the e$ercise of its conceded authority, granted the mandatory inAunction in the resolution of 6ctober ;I, )<=B. &t may be noted that the peaceful character of the peace march and rally on 6ctober ;( was not marred by any untoward incident. So it has been in other assemblies held elsewhere. &t is >uite reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be. 71!R!?6R!, the mandatory inAunction prayed for is granted. 4o costs.

The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free speech is the grievance alleged by petitioners, students of the "regorio Araneta 2niversity ?oundation, in this certiorari, prohibition and mandamus proceeding. The principal respondents are Anastacio D. Ramento, Director of the 4ational Capital Region of the /inistry of !ducation, Culture and Sports and the "regorio Araneta 2niversity ?oundation. 1 The nullification of the decision of respondent Ramento affirming the action ta0en by respondent "regorio Araneta 2niversity ?oundation finding petitioners guilty of illegal assembly and suspending them is sought in this petition. The facts are not open to dispute. 'etitioners were officers of the Supreme Student Council of respondent 2niversity. They sought and were granted by tile school authorities a permit to hold a meeting from =+** A./. to );+** './, on August ;N, )<=;. 'ursuant to such permit, along with other students, they held a general assembly at the @eterinary /edicine and Animal Science bas0etball court ,@/AS-, the place indicated in such permit, not in the bas0etball court as therein stated but at the second floor lobby. At such gathering they manifested in vehement and vigorous language their opposition to the proposed merger of the &nstitute of Animal Science with the &nstitute of Agriculture. At )*+B* A./., the same day, they marched toward the 9ife Science Juilding and continued their rally. &t was outside the area covered by their permit. They continued their demonstration, giving utterance to language severely critical of the 2niversity authorities and using megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non5academic employees, within hearing distance, stopped their wor0 because of the noise created. They were as0ed to e$plain on the same day why they should not be held liable for holding an illegal assembly. Then on September <, )<=;, they were formed through a memorandum that they were under preventive suspension for their failure to e$plain the holding of an illegal assembly in front of the 9ife Science Juilding. The validity thereof was challenged by petitioners both before the Court of ?irst &nstance of Rizal in a petition for mandamus with damages against private respondents 2 and before the /inistry of !ducation, Culture, and Sports. 6n 6ctober ;*, )<=;, respondent Ramento, as Director of the 4ational Capital Region, found petitioners guilty of the charge of having violated par. ):(,c- of the /anual for 'rivate Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. 1ence this petition. 6n 4ovember )(, )<=;, this Court issued the following resolution+ %Acting on the urgent e*- arte motion for the immediate issuance of a temporary mandatory order filed by counsel for petitioners, dated 4ovember );, )<=;, the Court Resolved to &SS2! A T!/'6RARH R!STRA&4&4" 6RD!R enAoining all respondents or any person or persons acting in their place or stead from enforcing the order of the /inistry of# !ducation and Culture dated 6ctober ;*, )<=; finding the petitioners guilty of the charges against them and suspending them for one ,)- academic year with a stern warning that a commission of the same or another offense will be dealt

G.R. No. L;)22*+ M$- 21, 198( CRIS#IN MALABANAN, E<ELIO 5ALOS, BEN L !HER L CAS, SO!ERO LEONERO, $%& 5 NE LEE,petitioners, vs. !HE HONORABLE ANAS!ACIO D. RAMEN!O, 0% 607 3$p$30t- $7 t6e D0re3tor o9 t6e N$t0o%$1 C$p0t$1 Re80o% o9 t6e M0%07tr- o9 E&,3$t0o%, C,1t,re $%& Sport7, !HE GREGORIO ARANE!A NI<ERSI!2 "O NDA!ION> CESAR MI5ARES, 0% 607 3$p$30t- $7 t6e #re70&e%t o9 t6e Gre8or0o Ar$%et$ %0=er70t- "o,%&$t0o%, GONZALO DEL ROSARIO, 0% 607 3$p$30t- $7 t6e D0re3tor 9or A3$&em03 A99$0r7 o9 t6e Gre8or0o Ar$%et$ %0=er70t- "o,%&$t0o%> !OMAS B. MESINA, 0% 607 3$p$30t- $7 t6e De$% o9 St,&e%t A99$0r7 o9 t6e Gre8or0o Ar$%et$ %0=er70t- "o,%&$t0o%> A!!2. LEONARDO #ADILLA, 0% 607 3$p$30t- $7 C60e9 Le8$1 Co,%7e1 4 Se3,r0t- S,per=07or o9 t6e Gre8or0o Ar$%et$ %0=er70t- "o,%&$t0o%> A!!2. "ABLI!A AMMA2, ROSENDO GAL<AN!E $%& E GENIA !A2AO, 0% t6e0r 3$p$30t0e7 $7 member7 o9 t6e A& Ho3 Comm0ttee o9 t6e Gre8or0o Ar$%et$ %0=er70t- "o,%&$t0o%, respondents. 3onesto N) Salce"o %or etitioners) The Solicitor (eneral an" 1eonar"o () Pa"illa O Pa!lita () Amma& %or res on"ents)

"ERNANDO, CJ.:

with utmost severity, effective as of this date and continuing until otherwise ordered by this Court, thus allowing them to enroll, if so minded. 3 Joth public and private respondents submitted their comments. 'rivate respondents prayed for the dismissal of the petition %for lac0 of factual and legal basis and li0ewise EprayedF for the lifting of the temporary restraining order dated 4ovember )(, )<=;.% ( 'ublic respondent Ramento, on the other hand, through the 6ffice of the Solicitor "eneral, prayed for the dismissal of the petition based on the following conclusion+ %Conse>uently, it is respectfully submitted that respondent Director of the /!CS did not commit any error, much less abused his discretion, when he affirmed the decision of respondent 2niversity finding petitioners guilty of violations of the provisions of the /anual of Regulations for 'rivate Schools and the Revised Student#s Code of Discipline .and ordering their suspension for one ,)- academic school year. 1owever, since said suspension has not been enforced e$cept only briefly, thereby enabling petitioners 9eonero, Dr., 9ucas and /alabanan to finish their courses, and allowing petitioners 9ee and Dalos to continue their schooling, if they so desire, this proceeding is now moot and academic. 5 7ith the submission of such comments considered as the answers of public and private respondents, the case was ready for decision. This petition may be considered moot and academic if viewed solely from the fact that by virtue of the temporary restraining order issued by this Court petitioners were allowed to enroll in the ensuing semester, with three of them doing so and with the other two e>ually entitled to do so. /oreover, there is the added circumstance of more than a year having passed since 6ctober ;*, )<=; when respondent Ramento issued the challenged decision suspending them for one year. 4onetheless, with its validity having been put in issue, for being violative of the constitutional rights of freedom of peaceable assembly and free speech, there is need to pass s>uarely on the >uestion raised. This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free speech calls for the setting aside of the decision of respondent Ramento, the penalty imposed being unduly severe. &t is true that petitioners held the rally at a place other than that specified in the permit and continued it longer than the time allowed. 2ndeniably too, they did disturb the classes and caused the wor0 of the non5academic personnel to be left undone. Such undesirable conse>uence could have been avoided by their holding the assembly in the bas0etball court as indicated in the permit. 4onetheless, suspending them for one year is out of proportion to their misdeed. The petition must be granted and the decision of respondent Ramento nullified, a much lesser penalty being appropriate. ). As is >uite clear from the opinion in Reyes v. Jagatsing, ) the invocation of the right to freedom of peaceable assembly carries with it the implication that the right to free speech has li0ewise been disregarded. Joth are embraced in the concept of

freedom of e$pression which is &dentified with the liberty to discuss publicly and truthfully, any matter of public interest without censorship or punishment and which %is not to be limited, much less denied, e$cept on a showing ... of a clear and present danger of a substantive evil that the state has a right to prevent.% * ;. &n the above case, a permit was sought to hold a peaceful march and rally from the 9uneta public par0 to the gates of the united States !mbassy, hardly two bloc0s away, where in an open space of public property, a short program would be held. 4ecessarily then, the >uestion of the use of a public par0 and of the streets leading to the 2nited States !mbassy was before this Court. 7e held that streets and par0s have immemorially been held in trust for the use of the public and have been used for purposes of assembly to communicate thoughts between citizens and to discuss public issues. 8 B. The situation here is different. The assembly was to be held not in a public place but in private premises, property of respondent 2niversity. There is in the Reyes opinion as part of the summary this relevant e$cerpt+ %The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public placewhere and the time when it will ta0e place. &f it were a private place, only the consent of the owner or the one entitled to its legal possession is re>uired.% 9 'etitioners did see0 such consent. &t was granted. According to the petition+ %6n August ;N, )<=;, by virtue of a permit granted to them by the school administration, the Supreme Student Council where your petitioners are among the officers, held a "eneral Assembly at the @/AS bas0etball court of the respondent university.% 1+ There was an e$press admission in the Comment of private respondent 2niversity as to a permit having been granted for petitioners to hold a student assembly. 11 The specific >uestion to be resolved then is whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement of the right to peaceable assembly and its cognate right of free speech. :. 'etitioners invo0e their rights to peaceable assembly and free speech. They are entitled to do so. They enAoy li0e the rest of the citizens the freedom to e$press their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of +ustice Fortas in Tinker #) -es Moines Communit& School -istrict , 12 %shed their constitutional rights to freedom of speech or e$pression at the schoolhouse gate.% 13 7hile, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. 6n a more specific level there is persuasive force to this formulation in the ?ortas opinion+ %The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending schoolC it is also an important part of the educational process. A student#s rights, therefore, do not embrace merely the classroom hours. 7hen he is in the cafeteria, or on the playing field, or on the campus during the

authorized hours, he may e$press his opinions, even on controversial subAects li0e the conflict in @ietnam, if he does so without #materially and substantially interferEingF with the re>uirements of appropriate discipline in the operation of the school# and without colliding with the rights of others. ... Jut conduct by the student, in class or out of it, which for any reason . whether it stems from time, place, or type of behavior . materially disrupts classwor0 or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.% 1( I. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a disregard of their constitutional rights to peaceable assembly and free speech. &t must be in their favor, but subAect to >ualification in view of their continuing their demonstration in a place other than that specified in the permit for a longer period and their ma0ing use of megaphones therein, resulting in the disruption of classes and the stoppage of wor0 by the non5academic personnel in the vicinity of such assembly. (. 6bAection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a vigorous presentation of views opposed to the proposed merger of the &nstitute of Animal Science with the &nstitute of Agriculture was to be e$pected. There was no concealment of the fact that they were against such a move as it confronted them with a serious problem 7iisang malaking suliranin).8 15 They believed that such a merger would result in the increase in tuition fees, an additional headache for their parents ,% isa na naman sakit sa ulo ng ating mga magulang).8) 1) &f in the course of such demonstration, with an enthusiastic audience goading them on, utterances, e$tremely critical, at times even vitriolic, were let loose, that is >uite understandable. Student leaders are hardly the timid, diffident types. They are li0ely to be assertive and dogmatic. They would be ineffective if during a rally they spea0 in the guarded and Audicious language of the academe. At any rate, even a sympathetic audience is not disposed to accord full credence to their fiery e$hortations. They ta0e into account the e$citement of the occasion, the propensity of spea0ers to e$aggerate, the e$uberance of youth, They may give the spea0ers the benefit of their applause, but with the activity ta0ing place in the school premises and during the daytime, no clear and present danger of public disorder is discernible. This is without preAudice to the ta0ing of disciplinary action for conduct, which, to borrow from Tin0er, %materially disrupts classwor0 or involves substantial disorder or invasion of the rights of others.% N. 4or is this a novel approach to the issue raised by petitioners that they were denied the right to peaceable assembly. &n a )<*N decision, 2nited States v. Apurado, 1* the facts disclosed that shortly before the municipal council of San Carlos, 6ccidental 4egros, started its session, some five hundred residents of the municipality assembled near the municipal building, and, upon the opening of the session, a substantial number of such persons barged into the council chamber, demanding that the municipal treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the same time the proposed substitutes. The municipal council gave its

conformity. Such individuals were wholly unarmed e$cept that a few carried canesC the crowd was fairly orderly and well5behaved e$cept in so far as their pressing into the council chamber during a session of that body could be called disorder and misbehavior. &t turned out that the movement had its origin in religious differences. The defendant ?ilomeno Apurado and many other participants were indicted and convicted of sedition in that they allegedly prevented the municipal government from freely e$ercising its duties. 6n appeal, the Supreme Court reversed. Dustice Carson, who penned the opinion, correctly pointed out that %if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an e$cuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to e$ercise it on the most righteous occasion and in the most peaceable manner would e$pose all those who too0 part therein to the severest form of punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities.% 18 The principle to be followed is enunciated thus+ %&f instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be e$ercised in drawing the line between "isor"erl& an" se"itious conduct and between an essentially peaceable assembly and a tumultuous uprising.% 19 A careful reading of this decision is in order before private respondents attach, as they did in their comments, a subversive character to the rally held by the students under the leadership of petitioners. =. &t does not follow, however, that petitioners can be totally absolved for the events that transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than the bas0etball court, of the @/AS building of the 2niversity. /oreover, it was continued longer than the period allowed. According to the decision of respondent Ramento, the %concerted activity Ereferring to such assemblyF went on until I+B* p. m. 2+ 'rivate respondents could thus, ta0e disciplinary action. 6n those facts, however, an admonition, even a censure5certainly not a suspension5could be the appropriate penalty. 'rivate respondents could and did ta0e umbrage at the fact that in view of such infraction considering the places where and the time when the demonstration too0 place5there was a disruption of the classes and stoppage of wor0 of the non5academic personnel. They would not be unAustified then if they did ta0e a much more serious view of the matter. !ven then a one5year period of suspension is much too severe. 7hile the discretion of both respondent 2niversity and respondent Ramento is recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. &f the concept of proportionality between the offense connoted and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process >uestion. To avoid this constitutional obAection, it is the holding of this Court that a one5wee0 suspension would be punishment enough. <. 6ne last matter. The obAection was raised that petitioners failed to e$haust administrative remedies. That is true, but hardly decisive. 1ere, a purely legal >uestion is presented. Such being the case, especially so where a decision on a

>uestion of law is imperatively called for, and time being of the essence, this Court has invariably viewed the issue as ripe for adAudication. 7hat cannot be too sufficiently stressed is that the constitutional rights to peaceable assembly and free speech are invo0ed by petitioners. /oreover, there was, and very li0ely there will continue to be in the future, militancy and assertiveness of students on issues that they consider of great importance, whether concerning their welfare or the general public. That they have a right to do as citizens entitled to all the protection in the Jill of Rights. )*. &t would be most appropriate then, as was done in the case of Re&es #) Bagatsing, 21 for this Court to lay down the principles for the guidance of school authorities and students ali0e. The rights to peaceable assembly and free speech are guaranteed students of educational institutions. 4ecessarily, their e$ercise to discuss matters affecting their welfare or involving public interest is not to be subAected to previous restraint or subse>uent punishment unless there be a showing of a clear and present danger to a substantive evil that the state, has a right to present. As a corollary, the utmost leeway and scope is accorded the content of the placards displayed or utterances made. The peaceable character of an assembly could be lost, however, by an advocacy of disorder under the name of dissent, whatever grievances that may be aired being susceptible to correction through the ways of the law. &f the assembly is to be held in school premises, permit must be sought from its school authorities, who are devoid of the power to deny such re>uest arbitrarily or unreasonably. &n granting such permit, there may be conditions as to the time and place of the assembly to avoid disruption of classes or stoppage of wor0 of the non5 academic personnel. !ven if, however, there be violations of its terms, the penalty incurred should not be disproportionate to the offense. 71!R!?6R!, the petition is granted. The decision dated 6ctober ;*, )<=; of respondent Ramento imposing a one5year suspension is nullified and set aside. The temporary restraining order issued by this Court in the resolution of 4ovember )=, )<=; is made permanent. As of that date, petitioners had been suspended for more than a wee0. &n that sense, the one5wee0 penalty had been served. 4o costs.

MERCADO, $7 Se3ret$r- o9 N$t0o%$1 De9e%7e, $%& HON. DOMINGO L. SIAZON, 5R., $7 Se3ret$r- o9 "ore08% A99$0r7, respondents.

FG.R. No. 13858*. O3tober 1+, 2+++.

!EO"IS!O !. G INGONA, 5R., RA L S. ROCO, $%& SERGIO R. OSMENA III, petitioners, vs. 5OSE#H E. ES!RADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, 5R., ORLANDO B. MERCADO, MARCELO B. "ERNAN, "RAN'LIN M. DRILON, BLAS ". O#LE $%& RODOL"O G. BIAZON, respondents.

FG.R. No. 138)8+. O3tober 1+, 2+++. FG.R. No. 1385*+. O3tober 1+, 2+++. IN!EGRA!ED BAR O" !HE #HILI##INES, Repre7e%te& b- 0t7 N$t0o%$1 #re70&e%t, 5o7e A8,01$ Gr$p01o%, petitioners, vs. 5OSE#H E5ERCI!O ES!RADA, 0% 607 3$p$30t- $7 #re70&e%t, Rep,b103 o9 t6e #6010pp0%e7, $%& HON. DOMINGO SIAZON, 0% 607 3$p$30t- $7 Se3ret$r- o9 "ore08% A99$0r7, respondents.

BA2AN ?B$8o%8 A1-$%7$%8 M$:$b$-$%@, $ 5 N' <"A MO<EMEN!, BISHO# !OMAS MILLAMENA ?I81e70$ "010p0%$ I%&epe%&0e%te@, BISHO# ELMER BOLOCAN ? %0te& C6,r36 o9 C6r07t o9 t6e #601.@, DR. RE2NALDO LEGASCA, MD, 'IL SANG MAMB B 'ID NG #ILI#INAS, 'IL SANG MA2O NO, GABRIELA, #ROLABOR, $%& t6e # BLIC IN!ERES! LA/ CEN!ER, petitioners, vs. ELEC !I<E SECRE!AR2 RONALDO ZAMORA, "OREIGN A""AIRS SECRE!AR2 DOMINGO SIAZON, DE"ENSE SECRE!AR2 ORLANDO MERCADO, BRIG. GEN. ALELANDER AG IRRE, SENA!E #RESIDEN! MARCELO "ERNAN, SENA!OR "RAN'LIN DRILON, SENA!OR BLAS O#LE, SENA!OR RODOL"O BIAZON, $%& SENA!OR "RANCISCO !A!AD , respondents.

FG.R. No. 138)98. O3tober 1+, 2+++.

FG.R. No. 1385*2. O3tober 1+, 2+++.

#HILI##INE CONS!I! !ION ASSOCIA!ION, INC.?#HILCONSA@, ELEM IEL B. GARCIA, AMADOGA! INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, $7 EGe3,t0=e Se3ret$r-, HON. ORLANDO

5O<I!O R. SALONGA, /IGBER!O !ANADA, ZENAIDA M EZON; A<ENCENA, ROLANDO SIMB LAN, #ABLI!O <. SANIDAD, MA. SOCORRO I. DIO'NO, AGA#I!O A. AM INO, 5O'ER #. ARRO2O, "RANCISCO C. RI<ERA 5R., RENE A.<. SAG ISAG, 'ILOSBA2AN, MO<EMEN! O" A!!ORNE2S "OR BRO!HERHOOD, IN!EGRI!2 AND NA!IONALISM, INC. ?MABINI@, petitioners, vs. !HE ELEC !I<E SECRE!AR2, !HE SECRE!AR2 O" "OREIGN A""AIRS, !HE SECRE!AR2 O" NA!IONAL DE"ENSE, SENA!E #RESIDEN! MARCELO B. "ERNAN, SENA!OR BLAS ". O#LE, SENA!OR RODOL"O G. BIAZON, AND ALL O!HER #ERSONS AC!ING !HEIR CON!ROL, S #ER<ISION, DIREC!ION, AND INS!R C!ION IN

RELA!ION !O !HE ?<"A@, respondents. DECISION B ENA, J.H

<ISI!ING

"ORCES

AGREEMEN!

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating to, and borne by, an agreement forged in the turn of the last century between the Republic of the 'hilippines and the 2nited States of America 5the @isiting ?orces Agreement. The antecedents unfold. 6n /arch ):, )<:N, the 'hilippines and the 2nited States of America forged a /ilitary Jases Agreement which formalized, among others, the use of installations in the 'hilippine territory by 2nited States military personnel. To further strengthen their defense and security relationship, the 'hilippines and the 2nited States entered into a /utual Defense Treaty on August B*, )<I). 2nder the treaty, the parties agreed to respond to any e$ternal armed attac0 on their territory, armed forces, public vessels, and aircraft.E)F &n view of the impending e$piration of the R'52S /ilitary Jases Agreement in )<<), the 'hilippines and the 2nited States negotiated for a possible e$tension of the military bases agreement. 6n September )(, )<<), the 'hilippine Senate reAected the proposed R'52S Treaty of ?riendship, Cooperation and Security which, in effect, would have e$tended the presence of 2S military bases in the 'hilippines. E;F 7ith the e$piration of the R'52S /ilitary Jases Agreement, the periodic military e$ercises conducted between the two countries were held in abeyance. 4otwithstanding, the defense and security relationship between the 'hilippines and the 2nited States of America continued pursuant to the /utual Defense Treaty. 6n Duly )=, )<<N, the 2nited States panel, headed by 2S Defense Deputy Assistant Secretary for Asia 'acific 3urt Campbell, met with the 'hilippine panel, headed by ?oreign Affairs 2ndersecretary Rodolfo Severino Dr., to e$change notes on Othe complementing strategic interests of the 2nited States and the 'hilippines in the Asia5'acific region.Q Joth sides discussed, among other things, the possible elements of the @isiting ?orces Agreement ,@?A for brevity-. 4egotiations by both panels on the @?A led to a consolidated draft te$t, which in turn resulted to a final series of conferences and negotiations EBF that culminated in /anila on Danuary ); and )B, )<<=. Thereafter, then 'resident ?idel @. Ramos approved the @?A, which was respectively signed by public respondent Secretary Siazon and 2nites States Ambassador Thomas 1ubbard on ?ebruary )*, )<<=. 6n 6ctober I, )<<=, 'resident Doseph !. !strada, through respondent Secretary of ?oreign Affairs, ratified the @?A.E:F

6n 6ctober (, )<<=, the 'resident, acting through respondent !$ecutive Secretary Ronaldo Mamora, officially transmitted to the Senate of the 'hilippines, EIF the &nstrument of Ratification, the letter of the 'resident E(F and the @?A, for concurrence pursuant to Section ;), Article @&& of the )<=N Constitution. The Senate, in turn, referred the @?A to its Committee on ?oreign Relations, chaired by Senator Jlas ?. 6ple, and its Committee on 4ational Defense and Security, chaired by Senator Rodolfo ". Jiazon, for their Aoint consideration and recommendation. Thereafter, Aoint public hearings were held by the two Committees.
ENF

6n /ay B, )<<<, the Committees submitted 'roposed Senate Resolution 4o. ::BE=F recommending the concurrence of the Senate to the @?A and the creation of a 9egislative 6versight Committee to oversee its implementation. Debates then ensued. 6n /ay ;N, )<<<, 'roposed Senate Resolution 4o. ::B was approved by the Senate, by a two5thirds ,;PB- voteE<F of its members. Senate Resolution 4o. ::B was then re5numbered as Senate Resolution 4o. )=.E)*F 6n Dune ), )<<<, the @?A officially entered into force after an !$change of 4otes between respondent Secretary Siazon and 2nited States Ambassador 1ubbard. The @?A, which consists of a 'reamble and nine ,<- Articles, provides for the mechanism for regulating the circumstances and conditions under which 2S Armed ?orces and defense personnel may be present in the 'hilippines, and is >uoted in its full te$t, hereunder+ OArticle & Definitions OAs used in this Agreement, V2nited States personnelL means 2nited States military and civilian personnel temporarily in the 'hilippines in connection with activities approved by the 'hilippine "overnment. O7ithin this definition+ O). The term Vmilitary personnelL refers to military members of the 2nited States Army, 4avy, /arine Corps, Air ?orce, and Coast "uard. O;. The term Vcivilian personnelL refers to individuals who are neither nationals of, nor ordinary residents in the 'hilippines and who are employed by the 2nited States armed forces or who are accompanying the 2nited States armed forces, such as employees of the American Red Cross and the 2nited Services 6rganization. OArticle && Respect for 9aw

O&t is the duty of the 2nited States personnel to respect the laws of the Republic of the 'hilippines and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the 'hilippines. The "overnment of the 2nited States shall ta0e all measures within its authority to ensure that this is done. OArticle &&& !ntry and Departure O). The "overnment of the 'hilippines shall facilitate the admission of 2nited States personnel and their departure from the 'hilippines in connection with activities covered by this agreement. O;. 2nited States military personnel shall be e$empt from passport and visa regulations upon entering and departing the 'hilippines. OB. The following documents only, which shall be presented on demand, shall be re>uired in respect of 2nited States military personnel who enter the 'hilippines+ O,a- personal identity card issued by the appropriate 2nited States authority showing full name, date of birth, ran0 or grade and service number ,if any-, branch of service and photographC O,b- individual or collective document issued by the appropriate 2nited States authority, authorizing the travel or visit and identifying the individual or group as 2nited States military personnelC and O,c- the commanding officer of a military aircraft or vessel shall present a declaration of health, and when re>uired by the cognizant representative of the "overnment of the 'hilippines, shall conduct a >uarantine inspection and will certify that the aircraft or vessel is free from >uarantinable diseases. Any >uarantine inspection of 2nited States aircraft or 2nited States vessels or cargoes thereon shall be conducted by the 2nited States commanding officer in accordance with the international health regulations as promulgated by the 7orld 1ealth 6rganization, and mutually agreed procedures. O:. 2nited States civilian personnel shall be e$empt from visa re>uirements but shall present, upon demand, valid passports upon entry and departure of the 'hilippines. OI. &f the "overnment of the 'hilippines has re>uested the removal of any 2nited States personnel from its territory, the 2nited States authorities

shall be responsible for receiving the person concerned within its own territory or otherwise disposing of said person outside of the 'hilippines. OArticle &@ Driving and @ehicle Registration O). 'hilippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate 2nited States authority to 2nited States personnel for the operation of military or official vehicles. O;. @ehicles owned by the "overnment of the 2nited States need not be registered, but shall have appropriate mar0ings. OArticle @ Criminal Durisdiction O). SubAect to the provisions of this article+ ,a- 'hilippine authorities shall have Aurisdiction over 2nited States personnel with respect to offenses committed within the 'hilippines and punishable under the law of the 'hilippines. ,b- 2nited States military authorities shall have the right to e$ercise within the 'hilippines all criminal and disciplinary Aurisdiction conferred on them by the military law of the 2nited States over 2nited States personnel in the 'hilippines. O;. ,a- 'hilippine authorities e$ercise e$clusive Aurisdiction over 2nited States personnel with respect to offenses, including offenses relating to the security of the 'hilippines, punishable under the laws of the 'hilippines, but not under the laws of the 2nited States. ,b- 2nited States authorities e$ercise e$clusive Aurisdiction over 2nited States personnel with respect to offenses, including offenses relating to the security of the 2nited States, punishable under the laws of the 2nited States, but not under the laws of the 'hilippines. ,c- ?or the purposes of this paragraph and paragraph B of this article, an offense relating to security means+ ,)- treasonC ,;- sabotage, espionage or violation of any law relating to national defense.

OB. &n cases where the right to e$ercise Aurisdiction is concurrent, the following rules shall apply+ ,a- 'hilippine authorities shall have the primary right to e$ercise Aurisdiction over all offenses committed by 2nited States personnel, e$cept in cases provided for in paragraphs ),b-, ; ,b-, and B ,b- of this Article. ,b- 2nited States military authorities shall have the primary right to e$ercise Aurisdiction over 2nited States personnel subAect to the military law of the 2nited States in relation to. ,)- offenses solely against the property or security of the 2nited States or offenses solely against the property or person of 2nited States personnelC and ,;- offenses arising out of any act or omission done in performance of official duty. ,c- The authorities of either government may re>uest the authorities of the other government to waive their primary right to e$ercise Aurisdiction in a particular case. ,d- Recognizing the responsibility of the 2nited States military authorities to maintain good order and discipline among their forces, 'hilippine authorities will, upon re>uest by the 2nited States, waive their primary right to e$ercise Aurisdiction e$cept in cases of particular importance to the 'hilippines. &f the "overnment of the 'hilippines determines that the case is of particular importance, it shall communicate such determination to the 2nited States authorities within twenty ,;*- days after the 'hilippine authorities receive the 2nited States re>uest. ,e- 7hen the 2nited States military commander determines that an offense charged by authorities of the 'hilippines against 2nited states personnel arises out of an act or omission done in the performance of official duty, the commander will issue a certificate setting forth such determination. This certificate will be transmitted to the appropriate authorities of the 'hilippines and will constitute sufficient proof of performance of official duty for the purposes of paragraph B,b-,;- of this Article. &n those cases where the "overnment of the 'hilippines believes the circumstances of the case re>uire a review of the duty certificate, 2nited States military authorities and 'hilippine authorities shall consult immediately. 'hilippine authorities at the highest levels may also present any information bearing on its validity. 2nited States military authorities shall ta0e full account of the 'hilippine position. 7here appropriate, 2nited States military authorities will ta0e disciplinary

or other action against offenders in official duty cases, and notify the "overnment of the 'hilippines of the actions ta0en. ,f- &f the government having the primary right does not e$ercise Aurisdiction, it shall notify the authorities of the other government as soon as possible. ,g- The authorities of the 'hilippines and the 2nited States shall notify each other of the disposition of all cases in which both the authorities of the 'hilippines and the 2nited States have the right to e$ercise Aurisdiction. O:. 7ithin the scope of their legal competence, the authorities of the 'hilippines and 2nited States shall assist each other in the arrest of 2nited States personnel in the 'hilippines and in handling them over to authorities who are to e$ercise Aurisdiction in accordance with the provisions of this article. OI. 2nited States military authorities shall promptly notify 'hilippine authorities of the arrest or detention of 2nited States personnel who are subAect of 'hilippine primary or e$clusive Aurisdiction. 'hilippine authorities shall promptly notify 2nited States military authorities of the arrest or detention of any 2nited States personnel. O(. The custody of any 2nited States personnel over whom the 'hilippines is to e$ercise Aurisdiction shall immediately reside with 2nited States military authorities, if they so re>uest, from the commission of the offense until completion of all Audicial proceedings. 2nited States military authorities shall, upon formal notification by the 'hilippine authorities and without delay, ma0e such personnel available to those authorities in time for any investigative or Audicial proceedings relating to the offense with which the person has been charged in e$traordinary cases, the 'hilippine "overnment shall present its position to the 2nited States "overnment regarding custody, which the 2nited States "overnment shall ta0e into full account. &n the event 'hilippine Audicial proceedings are not completed within one year, the 2nited States shall be relieved of any obligations under this paragraph. The one5year period will not include the time necessary to appeal. Also, the one5year period will not include any time during which scheduled trial procedures are delayed because 2nited States authorities, after timely notification by 'hilippine authorities to arrange for the presence of the accused, fail to do so. ON. 7ithin the scope of their legal authority, 2nited States and 'hilippine authorities shall assist each other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of obAects connected with an offense.

O=. 7hen 2nited States personnel have been tried in accordance with the provisions of this Article and have been ac>uitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same offense in the 'hilippines. 4othing in this paragraph, however, shall prevent 2nited States military authorities from trying 2nited States personnel for any violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried by 'hilippine authorities. O<. 7hen 2nited States personnel are detained, ta0en into custody, or prosecuted by 'hilippine authorities, they shall be accorded all procedural safeguards established by the law of the 'hilippines. At the minimum, 2nited States personnel shall be entitled+ ,a- To a prompt and speedy trialC ,b- To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time to prepare a defenseC ,c- To be confronted with witnesses against them and to cross e$amine such witnessesC ,d- To present evidence in their defense and to have compulsory process for obtaining witnessesC ,e- To have free and assisted legal representation of their own choice on the same basis as nationals of the 'hilippinesC ,f- To have the service of a competent interpreterC and ,g- To communicate promptly with and to be visited regularly by 2nited States authorities, and to have such authorities present at all Audicial proceedings. These proceedings shall be public unless the court, in accordance with 'hilippine laws, e$cludes persons who have no role in the proceedings. O)*. The confinement or detention by 'hilippine authorities of 2nited States personnel shall be carried out in facilities agreed on by appropriate 'hilippine and 2nited States authorities. 2nited States 'ersonnel serving sentences in the 'hilippines shall have the right to visits and material assistance. O)). 2nited States personnel shall be subAect to trial only in 'hilippine courts of ordinary Aurisdiction, and shall not be subAect to the Aurisdiction of 'hilippine military or religious courts. OArticle @& Claims

O). !$cept for contractual arrangements, including 2nited States foreign military sales letters of offer and acceptance and leases of military e>uipment, both governments waive any and all claims against each other for damage, loss or destruction to property of each otherLs armed forces or for death or inAury to their military and civilian personnel arising from activities to which this agreement applies. O;. ?or claims against the 2nited States, other than contractual claims and those to which paragraph ) applies, the 2nited States "overnment, in accordance with 2nited States law regarding foreign claims, will pay Aust and reasonable compensation in settlement of meritorious claims for damage, loss, personal inAury or death, caused by acts or omissions of 2nited States personnel, or otherwise incident to the non5combat activities of the 2nited States forces. OArticle @&& &mportation and !$portation O). 2nited States "overnment e>uipment, materials, supplies, and other property imported into or ac>uired in the 'hilippines by or on behalf of the 2nited States armed forces in connection with activities to which this agreement applies, shall be free of all 'hilippine duties, ta$es and other similar charges. Title to such property shall remain with the 2nited States, which may remove such property from the 'hilippines at any time, free from e$port duties, ta$es, and other similar charges. The e$emptions provided in this paragraph shall also e$tend to any duty, ta$, or other similar charges which would otherwise be assessed upon such property after importation into, or ac>uisition within, the 'hilippines. Such property may be removed from the 'hilippines, or disposed of therein, provided that disposition of such property in the 'hilippines to persons or entities not entitled to e$emption from applicable ta$es and duties shall be subAect to payment of such ta$es, and duties and prior approval of the 'hilippine "overnment. O;. Reasonable >uantities of personal baggage, personal effects, and other property for the personal use of 2nited States personnel may be imported into and used in the 'hilippines free of all duties, ta$es and other similar charges during the period of their temporary stay in the 'hilippines. Transfers to persons or entities in the 'hilippines not entitled to import privileges may only be made upon prior approval of the appropriate 'hilippine authorities including payment by the recipient of applicable duties and ta$es imposed in accordance with the laws of the 'hilippines. The e$portation of such property and of property ac>uired in the 'hilippines by 2nited States personnel shall be free of all 'hilippine duties, ta$es, and other similar charges.

OArticle @&&& /ovement of @essels and Aircraft O). Aircraft operated by or for the 2nited States armed forces may enter the 'hilippines upon approval of the "overnment of the 'hilippines in accordance with procedures stipulated in implementing arrangements. O;. @essels operated by or for the 2nited States armed forces may enter the 'hilippines upon approval of the "overnment of the 'hilippines. The movement of vessels shall be in accordance with international custom and practice governing such vessels, and such agreed implementing arrangements as necessary. OB. @ehicles, vessels, and aircraft operated by or for the 2nited States armed forces shall not be subAect to the payment of landing or port fees, navigation or over flight charges, or tolls or other use charges, including light and harbor dues, while in the 'hilippines. Aircraft operated by or for the 2nited States armed forces shall observe local air traffic control regulations while in the 'hilippines. @essels owned or operated by the 2nited States solely on 2nited States "overnment non5commercial service shall not be subAect to compulsory pilotage at 'hilippine ports. OArticle &K Duration and Termination OThis agreement shall enter into force on the date on which the parties have notified each other in writing through the diplomatic channel that they have completed their constitutional re>uirements for entry into force. This agreement shall remain in force until the e$piration of )=* days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.Q 2ia these consolidatedE))F petitions for certiorari and prohibition, petitioners 5 as legislators, non5governmental organizations, citizens and ta$payers 5 assail the constitutionality of the @?A and impute to herein respondents grave abuse of discretion in ratifying the agreement. 7e have simplified the issues raised by the petitioners into the following+ I Do petitioners have legal standing as concerned citizens, ta$payers, or legislators to >uestion the constitutionality of the @?A8 II I< III

&s the @?A governed by the provisions of Section ;), Article @&& or of Section ;I, Article K@&&& of the Constitution8

Does the @?A constitute an abdication of 'hilippine sovereignty8 a. Are 'hilippine courts deprived of their Aurisdiction to hear and try offenses committed by 2S military personnel8 b. &s the Supreme Court deprived of its Aurisdiction over offenses punishable by reclusion perpetua or higher8

Does the @?A violate+ a. the e>ual protection clause under Section ), Article &&& of the Constitution8 b. the 'rohibition against nuclear weapons under Article &&, Section =8 c. Section ;= ,:-, Article @& of the Constitution granting the e$emption from ta$es and duties for the e>uipment, materials supplies and other properties imported into or ac>uired in the 'hilippines by, or on behalf, of the 2S Armed ?orces8

" C!# #TA%D&

At the outset, respondents challenge petitionerLs standing to sue, on the ground that the latter have not shown any interest in the case, and that petitioners failed to substantiate that they have sustained, or will sustain direct inAury as a result of the operation of the @?A.E);F 'etitioners, on the other hand, counter that the validity or invalidity of the @?A is a matter of transcendental importance which Austifies their standing.E)BF A party bringing a suit challenging the constitutionality of a law, act, or statute must show Onot only that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining some direct inAury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way.Q 1e must show that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subAected to some burdens or penalties by reason of the statute complained of.E):F

&n the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or are in danger of sustaining any direct inAury as a result of the enforcement of the @?A. As ta$payers, petitioners have not established that the @?A involves the e$ercise by Congress of its ta$ing or spending powers. E)IF 6n this point, it bears stressing that a ta$payerLs suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from ta$ation.E)(F Thus, in B1@na3 Const. - Deve2op4ent Corp. vs. "aronE)NF, we held+ O$ $ $ it is e$igent that the ta$payer5plaintiff sufficiently show that he would be benefited or inAured by the Audgment or entitled to the avails of the suit as a real party in interest. Jefore he can invo0e the power of Audicial review, he must specifically prove that he has sufficient interest in preventing the illegal e$penditure of money raised by ta$ation and that he will sustain a direct inAury as a result of the enforcement of the >uestioned statute or contract. &t is not sufficient that he has merely a general interest common to all members of the public.Q Clearly, inasmuch as no public funds raised by ta$ation are involved in this case, and in the absence of any allegation by petitioners that public funds are being misspent or illegally e$pended, petitioners, as ta$payers, have no legal standing to assail the legality of the @?A. Similarly, Representatives 7igberto TaGada, Agapito A>uino and Do0er Arroyo, as petitioners5legislators, do not possess the re>uisite locus stan"i to maintain the present suit. 7hile this Court, in Phi2. Constit1tion Association vs. Hon. #a2vador EnriA1eB,E)=F sustained the legal standing of a member of the Senate and the 1ouse of Representatives to >uestion the validity of a presidential veto or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitionersL standing as members of Congress, in the absence of a clear showing of any direct inAury to their person or to the institution to which they belong. Jeyond this, the allegations of impairment of legislative power, such as the delegation of the power of Congress to grant ta$ e$emptions, are more apparent than real. 7hile it may be true that petitioners pointed to provisions of the @?A which allegedly impair their legislative powers, petitioners failed however to sufficiently show that they have in fact suffered direct inAury. &n the same vein, petitioner &ntegrated Jar of the 'hilippines ,&J'- is stripped of standing in these cases. As aptly observed by the Solicitor "eneral, the &J' lac0s the legal capacity to bring this suit in the absence of a board resolution from its Joard of "overnors authorizing its 4ational 'resident to commence the present action.E)<F 4otwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the e$ercise of its sound discretion, brushes aside the procedural barrier and ta0es cognizance of the

petitions, as we have done in the early E4er@enc3 Po>ers Cases,E;*F where we had occasion to rule+ O$ $ $ ordinary citizens and ta$payers were allowed to >uestion the constitutionality of several e$ecutive orders issued by 'resident uirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the obAection that they were not proper parties and ruled that Vtr$%73e%&e%t$1 0mport$%3e to t6e p,b103 o9 t6e7e 3$7e7 &em$%&7 t6$t t6e- be 7ett1e& prompt1- $%& &e90%0te1-, br,760%8 $70&e, 09 Be m,7t, te36%03$10t0e7 o9 pro3e&,re.L 7e have since then applied the e$ception in many other cases. ,Association of Small 9andowners in the 'hilippines, &nc. v. Sec. of Agrarian Reform, )NI SCRA B:B-.Q ,2nderscoring SuppliedThis principle was reiterated in the subse>uent cases of $onBa2es vs. C )E"EC,E;)F DaBa vs. #in@son,E;;F and Basco vs. Phi2. A41se4ent and $a4in@ Corporation,E;BF where we emphatically held+ OConsidering however the importance to the public of the case at bar, and in 0eeping with the CourtLs duty, under the )<=N Constitution, to determine whether or not the other branches of the government have 0ept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has ta0en cognizance of this petition. $ $ $Q Again, in the more recent case of Ci2osDa3an vs. $1in@ona, Jr.,E;:F thisCourt ruled that in cases of transcendental importance, t6e Co,rt m$- re1$G t6e 7t$%&0%8 reA,0reme%t7 $%& $11oB $ 7,0t to pro7per e=e% B6ere t6ere 07 %o &0re3t 0%D,r- to t6e p$rt- 31$0m0%8 t6e r086t o9 D,&030$1 re=0eB . Although courts generally avoid having to decide a constitutional >uestion based on the doctrine of separation of powers, which enAoins upon the departments of the government a becoming respect for each othersL acts, E;IF this Court nevertheless resolves to ta0e cognizance of the instant petitions.

APP"&CAB"E C %#T&T!T& %A" PR E&#& %

6ne focal point of in>uiry in this controversy is the determination of which provision of the Constitution applies, with regard to the e$ercise by the senate of its constitutional power to concur with the @?A.'etitioners argue that Section ;I, Article K@&&& is applicable considering that the @?A has for its subAect the presence of foreign military troops in the 'hilippines. Respondents, on the contrary, maintain that Section ;), Article @&& should apply inasmuch as the @?A is not a basing

arrangement but an agreement which involves merely the temporary visits of 2nited States personnel engaged in Aoint military e$ercises. The )<=N 'hilippine Constitution contains two provisions re>uiring the concurrence of the Senate on treaties or international agreements. Section ;), Article @&&, which herein respondents invo0e, reads+ O4o treaty or international agreement shall be valid and effective unless concurred in by at least two5thirds of all the /embers of the Senate.Q Section ;I, Article K@&&&, provides+ OAfter the e$piration in )<<) of the Agreement between the Republic of the 'hilippines and the 2nited States of America concerning /ilitary Jases, foreign military bases, troops, or facilities shall not be allowed in the 'hilippines e$cept under a treaty duly concurred in by the senate and, when the Congress so re>uires, ratified by a maAority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.Q Section ;), Article @&& deals with treatise or international agreements in general, in which case, the concurrence of at least two5thirds ,;PB- of all the /embers of the Senate is re>uired to ma0e the subAect treaty, or international agreement, valid and binding on the part of the 'hilippines. This provision lays down the general rule on treatise or international agreements and applies to any form of treaty with a wide variety of subAect matter, such as, but not limited to, e$tradition or ta$ treatise or those economic in nature. All treaties or international agreements entered into by the 'hilippines, regardless of subAect matter, coverage, or particular designation or appellation, re>uires the concurrence of the Senate to be valid and effective. &n contrast, Section ;I, Article K@&&& is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the 'hilippines. 2nder this provision, the concurrence of the Senate is only one of the re>uisites to render compliance with the constitutional re>uirements and to consider the agreement binding on the 'hilippines. Section ;I, Article K@&&& further re>uires that Oforeign military bases, troops, or facilitiesQ may be allowed in the 'hilippines only by virtue of a treaty duly concurred in by the Senate, ratified by a maAority of the votes cast in a national referendum held for that purpose if so re>uired by Congress, and recognized as such by the other contracting state. &t is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. &n particular, Section ;) opens with the clause O4o treaty $ $ $,Q and Section ;I contains the phrase Oshall not be allowed.Q Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective.

To our mind, the fact that the 'resident referred the @?A to the Senate under Section ;), Article @&&, and that the Senate e$tended its concurrence under the same provision, is immaterial. ?or in either case, whether under Section ;), Article @&& or Section ;I, Article K@&&&, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional re>uirements. 6n the whole, the @?A is an agreement which defines the treatment of 2nited States troops and personnel visiting the 'hilippines. &t provides for the guidelines to govern such visits of military personnel, and further defines the rights of the 2nited States and the 'hilippine government in the matter of criminal Aurisdiction, movement of vessel and aircraft, importation and e$portation of e>uipment, materials and supplies. 2ndoubtedly, Section ;I, Article K@&&&, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain e$tent and in a limited sense, however, the provisions of section ;), Article @&& will find applicability with regard to the issue and for the sole purpose of determining the number of votes re>uired to obtain the valid concurrence of the Senate, as will be further discussed hereunder. &t is a finely5imbedded principle in statutory construction that a special provision or law prevails over a general one. "eF specia2is dero@at @enera2i. Thus, where there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be ta0en to affect only such cases within its general language which are not within the provision of the particular enactment.E;(F &n "everiBa vs. &nter4ediate Appe22ate Co1rt,E;NF we enunciated+ O$ $ $ that another basic principle of statutory construction mandates that general legislation must give way to a special legislation on the same subAect, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable ,Sto. Domingo vs. de los Angeles, <( SCRA )B<-, that a specific statute prevails over a general statute ,De Desus vs. 'eople, );* SCRA N(*- and that where two statutes are of e>ual theoretical application to a particular case, the one designed therefor specially should prevail ,7il 7ilhensen &nc. vs. Jaluyot, =B SCRA B=-.Q /oreover, it is specious to argue that Section ;I, Article K@&&& is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. 6n this score, the Constitution ma0es no distinction between OtransientL and OpermanentQ. Certainly, we find nothing in Section ;I, Article K@&&& that re>uires %oreign troo s or %acilities to be stationed or placed per4anent23 in the 'hilippines. &t is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish5 !Di 2eF non distin@1it nec nos distin@1ire deDe4os.

&n li0e manner, we do not subscribe to the argument that Section ;I, Article K@&&& is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the @?A.4otably, a perusal of said constitutional provision reveals that the proscription covers O%oreign militar& !ases, troo s, or %acilities.Q Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to O%oreign militar& !ases, troo s, or %acilitiesQ collectively but treats them as separate and independent subAects. The use of comma and the disAunctive word O orQ clearly signifies disassociation and independence of one thing from the others included in the enumeration,E;=F such that, the provision contemplates three different situations 5 a military treaty the subAect of which could be either ,a- foreign bases, ,bforeign troops, or ,c- foreign facilities 5 any of the three standing alone places it under the coverage of Section ;I, Article K@&&&. To this end, the intention of the framers of the Charter, as manifested during the deliberations of the )<=( Constitutional Commission, is consistent with this interpretation+ O/R. /AA/J64". & Aust want to address a >uestion or two to Commissioner Jernas. This formulation spea0s of three things+ foreign military bases, troops or facilities. /y first >uestion is+ I9 t6e 3o,%tr- &oe7 e%ter 0%to 7,36 :0%& o9 $ tre$t-, m,7t 0t 3o=er t6e t6ree;b$7e7, troop7 or 9$3010t0e7;or 3o,1& t6e tre$t- e%tere& 0%to 3o=er o%1- o%e or tBoO ?R. J!R4AS. De90%0te1-, 0t 3$% 3o=er o%1- o%e. /6et6er 0t 3o=er7 o%1- o%e or 0t 3o=er7 t6ree, t6e reA,0reme%t B011 be t6e 7$me. /R. /AA/J64". I% ot6er Bor&7, t6e #6010pp0%e 8o=er%me%t 3$% e%ter 0%to $ tre$t- 3o=er0%8 %ot b$7e7 b,t mere1- troop7O ?R. J!R4AS. 2e7. /R. /AA/J64". & cannot find any reason why the government can enter into a treaty covering only troops. ?R. J!R4AS. 7hy not8 'robably if we stretch our imagination a little bit more, we will find some. 7e Aust want to cover everything.Q E;<F ,2nderscoring Supplied/oreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These military warships are actually used as substitutes for a land5home base not only of military aircraft but also of military personnel and facilities. Jesides, vessels are mobile as compared to a land5based military head>uarters.

At this Auncture, we shall then resolve the issue of whether or not the re>uirements of Section ;I were complied with when the Senate gave its concurrence to the @?A. Section ;I, Article K@&&& disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, #i$@ ,a- it must be under a tre$t-C ,b- the treaty must be &,1- 3o%3,rre& 0% b- t6e Se%$te and, when so re>uired by congress, ratified by a maAority of the votes cast by the people in a national referendumC and ,c- re3o8%0Ee& $7 $ tre$t- by the other contracting state. There is no dispute as to the presence of the first two re>uisites in the case of the @?A. The concurrence handed by the Senate through Resolution 4o. )= is in accordance with the provisions of the Constitution, whether under the general re>uirement in Section ;), Article @&&, or the specific mandate mentioned in Section ;I, Article K@&&&, the provision in the latter article re>uiring ratification by a maAority of the votes cast in a national referendum being unnecessary since Congress has not re>uired it. As to the matter of voting, Se3t0o% 21, Art031e <II particularly re>uires that a treaty or international agreement, to be valid and effective, must be 3o%3,rre& 0% b$t 1e$7t tBo;t60r&7 o9 $11 t6e member7 o9 t6e Se%$te. 6n the other hand, Section ;I, Article K@&&& simply provides that the treaty be I&,1- 3o%3,rre& 0% b- t6e Se%$te.J Applying the foregoing constitutional provisions, a two5thirds vote of all the members of the Senate is clearly re>uired so that the concurrence contemplated by law may be validly obtained and deemed present. 7hile it is true that Section ;I, Article K@&&& re>uires, among other things, that the treaty5the @?A, in the instant case5be Oduly concurred in by the Senate,Q it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section ;), Article @&&, which in more specific terms, re>uires that the concurrence of a treaty, or international agreement, be made by a two 5thirds vote of all the members of the Senate. &ndeed, Section ;I, Article K@&&& must not be treated in isolation to section ;), Article, @&&. As noted, the Oconcurrence re>uirementQ under Section ;I, Article K@&&& must be construed in relation to the provisions of Section ;), Article @&&. &n a more particular language, the concurrence of the Senate contemplated under Section ;I, Article K@&&& means that at least two5thirds of all the members of the Senate favorably vote to concur with the treaty5the @?A in the instant case. 2nder these circumstances, the charter provides that the Senate shall be composed of twenty5four ,;:- Senators. EB*F 7ithout a tinge of doubt, two5thirds ,;PBof this figure, or not less than si$teen ,)(- members, favorably acting on the proposal is an un>uestionable compliance with the re>uisite number of votes mentioned in Section ;) of Article @&&. The fact that there were actually twenty5three ,;Bincumbent Senators at the time the voting was made, EB)F will not alter in any significant way the circumstance that more than two5thirds of the members of the Senate concurred with the proposed @?A, even if the two5thirds vote re>uirement is

based on this figure of actual members ,;B-. &n this regard, the fundamental law is clear that two5thirds of the ;: Senators, or at least )( favorable votes, suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subAect treaty. 1aving resolved that the first two re>uisites prescribed in Section ;I, Article K@&&& are present, we shall now pass upon and delve on the re>uirement that the @?A should be recognized as a treaty by the 2nited States of America. 'etitioners content that the phrase Orecognized as a treaty,Q embodied in section ;I, Article K@&&&, means that the @?A should have the advice and consent of the 2nited States Senate pursuant to its own constitutional process, and that it should not be considered merely an e$ecutive agreement by the 2nited States. &n opposition, respondents argue that the letter of 2nited States Ambassador 1ubbard stating that the @?A is binding on the 2nited States "overnment is conclusive, on the point that the @?A is recognized as a treaty by the 2nited States of America. According to respondents, the @?A, to be binding, must only be accepted as a treaty by the 2nited States. This Court is of the firm view that the phrase Greco@niBed as a treat3H means that the other contracting party accepts or acIno>2ed@es the agreement as a treaty. EB;F To re>uire the other contractingstate, the 2nited States of America in this case, to submit the @?A to the 2nited States Senate for concurrence pursuant to its Constitution,EBBF is to accord strict meaning to the phrase. 7ell5entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning e$cept where technical terms are employed, in which case the significance thus attached to them prevails. &ts language should be understood in the sense they have in common use.EB:F /oreover, it is inconse>uential whether the 2nited States treats the @?A only as an e$ecutive agreement because, under international law, an e$ecutive agreement is as binding as a treaty. EBIF To be sure, as long as the @?A possesses the elements of an agreement under international law, the said agreement is to be ta0en e>ually as a treaty. A treaty, as defined by the @ienna Convention on the 9aw of Treaties, is Oan international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.Q EB(F There are many other terms used for a treaty or international agreement, some of which are+ act, protocol, agreement, com romis "P ar!itrage, concordat, convention, declaration, e$change of notes, pact, statute, charter and mo"us #i#en"i. All writers, from 1ugo "rotius onward, have pointed out that the names or titles of international agreements included under the general term treat3 have little or no legal significance. Certain terms are useful, but they furnish little more than mere description. EBNF

Article ;,;- of the @ienna Convention provides that Othe provisions of paragraph ) regarding the use of terms in the present Convention are without preAudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State.Q Thus, in international law, there is no difference between treaties and e$ecutive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. EB=F &nternational law continues to ma0e no distinction between treaties and e$ecutive agreements+ they are e>ually binding obligations upon nations.EB<F &n our Aurisdiction, we have recognized the binding effect of e$ecutive agreements even without the concurrence of the Senate or Congress. &n Co44issioner o5 C1sto4s vs. Eastern #ea Tradin@, E:*F we had occasion to pronounce+ O$ $ $ the right of the !$ecutive to enter into binding agreements without the necessity of subse>uent congressional approval has been con%irme" !& long usage. ?rom the earliest days of our history we have entered into e$ecutive agreements covering such subAects as commercial and consular relations, most5 favored5nation rights, patent rights, trademar0 and copyright protection, postal and navigation arrangements and the settlement of claims. The #ali"it& o% these has ne#er !een seriousl& 5uestione" !& our courts. O$ $ $ $ $ $ $ $ $ O?urthermore, the 2nited States Supreme Court has e$pressly recognized the validity and constitutionality of e$ecutive agreements entered into without Senate approval. ?39 Co1,mb0$ L$B Re=0eB, pp. *53;*5(@ ?See, $17o, .S. vs. C,rt07 /r086t EGport Corpor$t0o%, 299 .S. 3+(, 81 L. e&. 255> .S. vs. Be1mo%t, 3+1 .S. 32(, 81 L. e&. 113(> .S. vs. #0%:, 315 .S. 2+3, 8) L. e&. *9)> OE$%03 vs. .S. 188 ". 2&. 288> 2$1e L$B 5o,r%$1, <o1. 15 pp. 19+5;19+)> C$109or%0$ L$B Re=0eB, <o1. 25, pp. )*+;)*5> H-&e o% I%ter%$t0o%$1 L$B Fre=07e& E&0t0o%., <o1. 2, pp. 1(+5, 1(1);1(18> B011o,86b- o% t6e .S. Co%7t0t,t0o% L$B, <o1. I F2& e&.., pp. 53*;5(+> Moore, I%ter%$t0o%$1 L$B D08e7t, <o1. <, pp. 21+;218> H$3:Bort6, I%ter%$t0o%$1 L$B D08e7t, <o1. <, pp. 39+;(+*@. ?It$1037 S,pp10e&@J ,!mphasis 6ursThe deliberations of the Constitutional Commission which drafted the )<=N Constitution is enlightening and highly5instructive+ OMR. MAAMBONG. 6f course it goes without saying that as far as ratification of the other state is concerned, that is entirely their concern under their own laws.

"R. BERNAS. Hes, but we will accept whatever they say. &f they say that we have done everything to ma0e it a treaty, then as far as we are concerned, we will accept it as a treaty.QE:)F The records reveal that the 2nited States "overnment, through Ambassador Thomas C. 1ubbard, has stated that the 2nited States government has fully committed to living up to the terms of the @?A. E:;F ?or as long as the united States of America accepts or ac0nowledges the @?A as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed mar0ed compliance with the mandate of the Constitution. 7orth stressing too, is that the ratification, by the 'resident, of the @?A and the concurrence of the Senate should be ta0en as a clear an une>uivocal e$pression of our nationLs consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. Ratification is generally held to be an e$ecutive act, underta0en by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed. E:BF A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is e$pressed by ratification when+ ,a- the treaty provides for such ratification, ,b- it is otherwise established that the negotiating States agreed that ratification should be re>uired, ,c- the representative of the State has signed the treaty subAect to ratification, or ,d- the intention of the State to sign the treaty subAect to ratification appears from the full powers of its representative, or was e$pressed during the negotiation.E::F &n our Aurisdiction, the power to ratify is vested in the 'resident and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. E:IF 7ith the ratification of the @?A, which is e>uivalent to final acceptance, and with the e$change of notes between the 'hilippines and the 2nited States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section ;, Article && of the Constitution, E:(F declares that the 'hilippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, e>uality, Austice, freedom, cooperation and amity with all nations. As a member of the family of nations, the 'hilippines agrees to be bound by generally accepted rules for the conduct of its international relations. 7hile the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the 'hilippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation.E:NF1ence, we cannot readily plead the Constitution as a

convenient e$cuse for non5compliance with our obligations, duties and responsibilities under international law. Jeyond this, Article )B of the Declaration of Rights and Duties of States adopted by the &nternational 9aw Commission in )<:< provides+ Q6#er& State has the "ut& to carr& out in goo" %aith its o!ligations arising %rom treaties an" other sources o% international law, an" it ma& not in#oke ro#isions in its constitution or its laws as an e*cuse %or %ailure to er%orm this "ut&)DE:=F !>ually important is Article ;( of the convention which provides that O!very treaty in force is binding upon the parties to it and must be performed by them in good faith.Q This is 0nown as the principle of acta sunt ser#an"a which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the Aurisprudence of international tribunals.
E:<F

% $RAEE AB!#E F D&#CRET& %

&n the instant controversy, the 'resident, in effect, is heavily faulted for e$ercising a power and performing a tas0 conferred upon him by the Constitution5the power to enter into and ratify treaties. Through the e$pediency of Rule (I of the Rules of Court, petitioners in these consolidated cases impute 8r$=e $b,7e o9 &073ret0o% on the part of the chief !$ecutive in ratifying the @?A, and referring the same to the Senate pursuant to the provisions of Section ;), Article @&& of the Constitution. 6n this particular matter, grave abuse of discretion implies such capricious and whimsical e$ercise of Audgment as is e>uivalent to lac0 of Aurisdiction, or, when the power is e$ercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enAoined or to act at all in contemplation of law.EI*F Jy constitutional fiat and by the intrinsic nature of his office, the 'resident, as head of State, is the sole organ and authority in the e$ternal affairs of the country. &n many ways, the 'resident is the chief architect of the nationLs foreign policyC his Odominance in the field of foreign relations is ,then- conceded.Q EI)F 7ielding vast powers an influence, his conduct in the e$ternal affairs of the nation, as Defferson describes, is Oe*ecuti#e altogether.%EI;F As regards the power to enter into treaties or international agreements, the Constitution vests the same in the 'resident, subAect only to the concurrence of at least two5thirds vote of all the members of the Senate. &n this light, the negotiation of the @?A and the subse>uent ratification of the agreement are e$clusive acts which pertain solely to the 'resident, in the lawful e$ercise of his vast e$ecutive and diplomatic powers granted him no less than by the fundamental law itself. Into the %iel" o% negotiation the Senate cannot intru"e, an" Congress itsel% is owerless to

in#a"e it.EIBF Conse>uently, the acts or Audgment calls of the 'resident involving the @?A5specifically the acts of ratification and entering into a treaty and those necessary or incidental to the e$ercise of such principal acts 5 s>uarely fall within the sphere of his constitutional powers and thus, may not be validly struc0 down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion. &t is the CourtLs considered view that the 'resident, in ratifying the @?A and in submitting the same to the Senate for concurrence, acted within the confines and limits of the powers vested in him by the Constitution. &t is of no moment that the 'resident, in the e$ercise of his wide latitude of discretion and in the honest belief that the @?A falls within the ambit of Section ;), Article @&& of the Constitution, referred the @?A to the Senate for concurrence under the aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of Audgment, may be imputed to the 'resident in his act of ratifying the @?A and referring the same to the Senate for the purpose of complying with the concurrence re>uirement embodied in the fundamental law. &n doing so, the 'resident merely performed a constitutional tas0 and e$ercised a prerogative that chiefly pertains to the functions of his office. !ven if he erred in submitting the @?A to the Senate for concurrence under the provisions of Section ;) of Article @&&, instead of Section ;I of Article K@&&& of the Constitution, still, the 'resident may not be faulted or scarred, much less be adAudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner. ?or while it is conceded that Article @&&&, Section ), of the Constitution has broadened the scope of Audicial in>uiry into areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with political >uestions such as those which arise in the field of foreign relations.EI:F The 1igh TribunalLs function, as sanctioned by Article @&&&, Section ), Qis merel& 7to8 check whether or not the go#ernmental !ranch or agenc& has gone !e&on" the constitutional limits o% its 9uris"iction, not that it erre" or has a "i%%erent #iew) In the a!sence o% a showingC 7o%8 gra#e a!use o% "iscretion amounting to lack o% 9uris"iction, there is no occasion %or the Court to e*ercise its correcti#e owerCIt has no ower to look into what it thinks is a arent error)DEIIF As to the power to concur with treaties, the constitution lodges the same with the Senate alone. Thus, once the SenateEI(F performs that power, or e$ercises its prerogative within the boundaries prescribed by the Constitution, the concurrence cannot, in li0e manner, be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the e$ercise of its discretion and acting within the limits of such power, may not be similarly faulted for having simply performed a tas0 conferred and sanctioned by no less than the fundamental law. ?or the role of the Senate in relation to treaties is essentially legislative in characterCEINF the Senate, as an independent body possessed of its own erudite mind, has the prerogative to either accept or reAect the proposed agreement, and whatever action it ta0es in the e$ercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. &n this sense, the Senate parta0es a principal, yet

delicate, role in 0eeping the principles of se aration o% owers and of checks an" !alances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The Constitution thus animates, through this treaty5concurring power of the Senate, a healthy system of chec0s and balances indispensable toward our nationLs pursuit of political maturity and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to in>uire. &n fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court5 as the final arbiter of legal controversies and staunch sentinel of the rights of the people 5 is then without power to conduct an incursion and meddle with such affairs purely e$ecutive and legislative in character and nature. ?or the Constitution no less, maps out the distinct boundaries and limits the metes and bounds within which each of the three political branches of government may e$ercise the powers e$clusively and essentially conferred to it by law. /HERE"ORE, in light of the foregoing dis>uisitions, the instant petitions are hereby D&S/&SS!D. SO ORDERED.