FREEDOM OF EXPRESSION; FREEDOM OF THE PRESS; RIGHT TO ASSEMBLE & PETITION

United States Supreme Court

ABRAMS v. U S, (1919)
No. 316
Argued: Decided: November 10, 1919
Mr. Harry Weinberger, of New York City, for plaintiffs in error.

Mr. Assistant Attorney General Robert P. Stewart, for the United States.

Mr. Justice CLARKE delivered the opinion of the Court.

On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the defendants,
were convicted of conspiring to violate provisions of the [250 U.S. 616, 617] Espionage Act of Congress (section
3, title I, of Act June 15, 1917, c. 30, 40 Stat. 219, as amended by Act May 16, 1918, c. 75, 40 Stat. 553 [Comp. St.
1918, 10212c]).

Each of the first three counts charged the defendants with conspiring, when the United States was at war with
the Imperial Government of Germany, to unlawfully utter, print, write and publish: In the first count, 'disloyal,
scurrilous and abusive language about the form of government of the United States;' in the second count,
language 'intended to bring the form of government of the United States into contempt, scorn, contumely, and
disrepute;' and in the third count, language 'intended to incite, provoke and encourage resistance to the United
States in said war.' The charge in the fourth count was that the defendants conspired 'when the United States was
at war with the Imperial German Government, ... unlawfully and willfully, by utterance, writing, printing and
publication to urge, incite and advocate curtailment of production of things and products, to wit, ordnance and
ammunition, necessary and essential to the prosecution of the war.' The offenses were charged in the language of
the act of Congress.

It was charged in each count of the indictment that it was a part of the conspiracy that the defendants would
attempt to accomplish their unlawful purpose by printing, writing and distributing in the city of New York many
copies of a leaflet or circular, printed in the English language, and of another printed in the Yiddish language,
copies of which, properly identified, were attached to the indictment.

All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and at the time
they were arrested they had lived in the United States terms varying from five to ten years, but none of them had
applied for naturalization. Four of them testified as witnesses in their own behalf, and of these three frankly
avowed that they were 'rebels,' 'revolutionists,' [250 U.S. 616, 618] 'anarchists,' that they did not believe in
government in any form, and they declared that they had no interest whatever in the government of the United
States. The fourth defendant testified that he was a 'Socialist' and believed in ' a proper kind of government, not
capitalistic,' but in his classification the government of the United States was 'capitalistic.'

It was admitted on the trial that the defendants had united to print and distribute the described circulars and
that 5,000 of them had been printed and distributed about the 22d day of August, 1918. The group had a meeting
place in New York City, in rooms rented by defendant Abrams, under an assumed name, and there the subject of
printing the circulars was discussed about two weeks before the defendants were arrested. The defendant
Abrams, although not a printer, on July 27, 1918, purchased the printing outfit with which the circulars were
printed, and installed it in a basement room where the work was done at night. The circulars were distributed,
some by throwing them from a window of a building where one of the defendants was employed and others
secretly, in New York City.

The defendants pleaded 'not guilty,' and the case of the government consisted in showing the facts we have
stated, and in introducing in evidence copies of the two printed circulars attached to the indictment, a sheet
entitled 'Revolutionists Unite for Action,' written by the defendant Lipman, and found on him when he was
arrested, and another paper, found at the headquarters of the group, and for which Abrams assumed
responsibility.

Thus the conspiracy and the doing of the overt acts charged were largely admitted and were fully established.

On the record thus described it is argued, somewhat faintly, that the acts charged against the defendants were
not unlawful because within the protection of that freedom [250 U.S. 616, 619] of speech and of the press which
is guaranteed by the First Amendment to the Constitution of the United States, and that the entire Espionage Act
is unconstitutional because in conflict with that amendment.

This contention is sufficiently discussed and is definitely negatived in Schenck v. United States and Baer v.
United States, 249 U.S. 47 , 39 Sup. Ct. 247, and in Frohwerk v. United States, 249 U.S. 204 , 39 Sup. Ct. 249.

The claim chiefly elaborated upon by the defendants in the oral argument and in their brief is that there is no
substantial evidence in the record to support the judgment upon the verdict of guilty and that the motion of the
defendants for an instructed verdict in their favor was erroneously denied. A question of law is thus presented,
which calls for an examination of the record, not for the purpose of weighing conflicting testimony, but only to
determine whether there was some evidence, competent and substantial, before the jury, fairly tending to sustain
the verdict. Troxell, Administrator, v. Delaware, Lackawanna & Western R. R. Co., 227 U.S. 434, 442 , 33 S. Sup.
Ct. 274; Lancaster v. Collins, 115 U.S. 222, 225 , 6 S. Sup. Ct. 33; Chicago & North Western Ry. Co. v. Ohle, 117
U.S. 123, 129 , 6 S. Sup. Ct. 632. We shall not need to consider the sufficiency, under the rule just stated, of the
evidence introduced as to all of the counts of the indictment, for, since the sentence imposed did not exceed that
which might lawfully have been imposed under any single count, the judgment upon the verdict of the jury must
be affirmed if the evidence is sufficient to sustain any one of the counts. Evans v. United States, 153 U.S. 608 , 14
Sup. Ct. 939; Claassen v. United States, 142 U.S. 140 , 12 Sup. Ct. 169; Debs v. United States, 249 U.S. 211, 216 , 39
S. Sup. Ct. 252.

The first of the two articles attached to the indictment is conspicuously headed, 'The Hypocrisy of the United
States and her Allies.' After denouncing President Wilson as a hypocrite and a coward because troops were sent
into Russia, it proceeds to assail our government in general, saying:- [250 U.S. 616, 620] 'His [the President's]
shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in
Washington and vicinity.'

It continues:

'He [the President] is too much of a coward to come out openly and say: 'We capitalistic nations cannot afford to
have a proletarian republic in Russia."
Among the capitalistic nations Abrams testified the United States was included.
Growing more inflammatory as it proceeds, the circular culminates in:

'The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!'
'Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM.'
This is clearly an appeal to the 'workers' of this country to arise and put down by force the government of the
United States which they characterize as their 'hypocritical,' 'cowardly' and 'capitalistic' enemy.

It concludes:

'Awake! Awake, you Workers of the World!

REVOLUTIONISTS.'

The second of the articles was printed in the Yiddish language and in the translation is headed, 'Workers-Wake
Up.' After referring to 'his Majesty, Mr. Wilson, and the rest of the gang, dogs of all colors!' it continues:

'Workers, Russian emigrants, you who had the least belief in the honesty of our government,'
- which defendants admitted referred to the United States government--

'must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has
fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.'
The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to
patriotic [250 U.S. 616, 621] appeals in behalf of the government of the United States, and to cease to render it
assistance in the prosecution of the war.

It goes on:

'With the money which you have loaned, or are going to loan them, they will make bullets not only for the
Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing
bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and
are fighting for freedom.'
It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the
Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were
likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the
plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of
the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might,
would be to persuade persons of character such as those whom they regarded themselves as addressing, not to
aid government loans and not to work in ammunition factories, where their work would produce 'bullets,
bayonets, cannon' and other munitions of war, the use of which would cause the 'murder' of Germans and
Russians.

Again, the spirit becomes more bitter as it proceeds to declare that--

'America and her Allies have betrayed [the Workers]. Their robberish aims are clear to all men. The destruction
of the Russian Revolution, that is the politics of the march to Russia.
'Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the
government know that not only the Russian Worker fights for [250 U.S. 616, 622] freedom, but also here in
America lives the spirit of Revolution.'
This is not an attempt to bring about a change of administration by candid discussion, for no matter what may
have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was
to create an attempt to defeat the war plans of the government of the United States, by bringing upon the country
the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to
the conduct of the war.

This purpose is emphasized in the next paragraph, which reads:

'Do not let the government scare you with their wild punishment in prisons, hanging and shooting. We must not
and will not betray the splendid fighters of Russia. Workers, up to fight.'
After more of the same kind, the circular concludes:

'Woe unto those who will be in the way of progress. Let solidarity live!'
It is signed, 'The Rebels.'

That the interpretation we have put upon these articles, circulated in the greatest port of our land, from which
great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of
every kind were at the time being manufactured for transportation overseas, is not only the fair interpretation of
them, but that it is the meaning which their authors consciously intended should be conveyed by them to others
is further shown by the additional writings found in the meeting place of the defendant group and on the person
of one of them. One of these circulars is headed: 'Revolutionists! Unite for Action!'

After denouncing the President as 'Our Kaiser' and the hypocrisy of the United States and her Allies, this article
concludes:- [250 U.S. 616, 623] 'Socialists, Anarchists, Industrial Workers of the World, Socialists, Labor party
men and other revolutionary organizations Unite for Action and let us save the Workers' Republic of Russia!

'Know you lovers of freedom that in order to save the Russian revolution, we must keep the armies of the allied
countries busy at home.'
Thus was again avowed the purpose to throw the country into a state of revolution, if possible, and to thereby
frustrate the military program of the government.

The remaining article, after denouncing the President for what is characterized as hostility to the Russian
revolution, continues:

'We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will
participate in that bloody conspiracy against Russia, to create so great a disturbance that the autocrats of
America shall be compelled to keep their armies at home, and not be able to spare any for Russia.'
It concludes with this definite threat of armed rebellion:

'If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they
shall never see the ruin of the Russian Revolution.'
These excerpts sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness,
on the part of the defendant alien anarchists, may have been resentment caused by our government sending
troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose
of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they
hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of
the government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language
applied to the form of our government or language intended to bring the form [250 U.S. 616, 624] of our
government into contempt and disrepute, and language of like character and intended to produce like results
directed against the President and Congress, the agencies through which that form of government must function
in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vital or
merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance
to the United States in the war, as the third count runs, and, the defendants, in terms, plainly urged and
advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the
production of ordnance and munitions necessary and essential to the prosecution of the war as is charged in the
fourth count. Thus it is clear not only that some evidence but that much persuasive evidence was before the jury
tending to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment
and under the long established rule of law hereinbefore stated the judgment of the District Court must be

AFFIRMED.

Mr. Justice HOLMES, dissenting.

This indictment is founded wholly upon the publication of two leaflets which I shall describe in a moment. The
first count charges a conspiracy pending the war with Germany to publish abusive language about the form of
government of the United States, laying the preparation and publishing of the first leaflet as overt acts. The
second count charges a conspiracy pending the war to publish language intended to bring the form of
government into contempt, laying the preparation and publishing of the two leaflets as overt acts. The third
count alleges a conspiracy to encourage resistance to the United States in the same war and to attempt to
effectuate the purpose by publishing the same leaflets. The fourth count lays a conspiracy [250 U.S. 616, 625] to
incite curtailment of production of things necessary to the prosecution of the war and to attempt to accomplish it
by publishing the second leaflet to which I have referred.

The first of these leaflets says that the President's cowardly silence about the intervention in Russia reveals the
hypocrisy of the plutocratic gang in Washington. It intimates that 'German militarism combined with allied
capitalism to crush the Russian revolution'-goes on that the tyrants of the world fight each other until they see a
common enemy-working class enlightenment, when they combine to crush it; and that now militarism and
capitalism combined, though not openly, to crush the Russian revolution. It says that there is only one enemy of
the workers of the world and that is capitalism; that it is a crime for workers of America, etc., to fight the
workers' republic of Russia, and ends 'Awake! Awake, you workers of the world! Revolutionists.' A note adds 'It is
absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants.
We have more reason for denouncing German militarism than has the coward of the White House.'

The other leaflet, headed 'Workers-Wake Up,' with abusive language says that America together with the Allies
will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and that his time the
hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants
that they now must spit in the face of the false military propaganda by which their sympathy and help to the
prosecution of the war have been called forth and says that with the money they have lent or are going to lend
'they will make bullets not only for the Germans but also for the Workers Soviets of Russia,' and further,
'Workers in the ammunition factories, you are producing bullets, bayonets, cannon to murder not only the
Germans, [250 U.S. 616, 626] but also your dearest, best, who are in Russia fighting for freedom.' It then appeals
to the same Russian emigrants at some length not to consent to the 'inquisitionary expedition in Russia,' and
says that the destruction of the Russian revolution is 'the politics of the march on Russia.' The leaflet winds up by
saying 'Workers, our reply to this barbaric intervention has to be a general strike!' and after a few words on the
spirit of revolution, exhortations not to be afraid, and some usual tall talk ends 'Woe unto those who will be in
the way of progress. Let solidarity live! The Rebels.'

No argument seems to be necessary to show that these pronunciamentos in no way attack the form of
government of the United States, or that they do not support either of the first two counts. What little I have to
say about the third count may be postponed until I have considered the fourth. With regard to that it seems too
plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to
murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment
of production of things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918, c.
75, 40 Stat. 553, amending section 3 of the earlier Act of 1917 (Comp. St. 10212c). But to make the conduct
criminal that statute requires that it should be 'with intent by such curtailment to cripple or hinder the United
States in the prosecution of the war.' It seems to me that no such intent is proved.

I am aware of course that the word 'intent' as vaguely used in ordinary legal discussion means no more than
knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will
satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to
prison, at common law might be hanged, if at the time of his act [250 U.S. 616, 627] he knew facts from which
common experience showed that the consequences would follow, whether he individually could foresee them or
not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that
consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow,
and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless the aim
to produce it is the proximate motive of the specific act, although there may be some deeper motive behind.

It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be
absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of
a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the
curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States
in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not
answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect
of the case. I refer to the First Amendment to the Constitution that Congress shall make no law abridging the
freedom of speech.

I never have seen any reason to doubt that the questions of law that alone were before this Court in the Cases of
Schenck ( 249 U.S. 47 , 29 Sup. Ct. 247) Frohwerk ( 249 U.S. 204 , 39 Sup. Ct. 249), and Debs (249 U.S. 211 , 39
Sup. Ct. 252), were rightly decided. I do not doubt for a moment that by the same reasoning that would justify
punishing persuasion to murder, the United States constitutionally may punish speech that produces or is
intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that
the United States constitutionally may seek to prevent. The power undoubtedly is [250 U.S. 616, 628] greater in
time of war than in time of peace because war opens dangers that do not exist at other times.

But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the
same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in
setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot
forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of
a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would
hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions
for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the
quality of an attempt. So I assume that the second leaflet if published for the purposes alleged in the fourth count
might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within
the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt,
where a further act of the same individual is required to complete the substantive crime, for reasons given in
Swift & Co. v. United States, 196 U.S. 375, 396 , 25 S. Sup. Ct. 276. It is necessary where the success of the attempt
depends upon others because if that intent is not present the actor's aim may be accomplished without bringing
about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have
been satisfied without any hindrance to carrying on the war in which we were engaged.

I do not see how anyone can find the intent required by the statute in any of the defendant's words. The second
leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of
German militarism expressed in the former one, it is evident [250 U.S. 616, 629] from the beginning to the end
that the only object of the paper is to help Russia and stop American intervention there against the popular
government- not to impede the United States in the war that it was carrying on. To say that two phrases taken
literally might import a suggestion of conduct that would have interference with the war as an indirect and
probably undesired effect seems to me by no means enough to show an attempt to produce that effect.

I return for a moment to the third count. That charges an intent to provoke resistance to the United States in its
war with Germany. Taking the clause in the statute that deals with that in connection with the other elaborate
provisions of the Act, I think that resistance to the United States means some forcible act of opposition to some
proceeding of the United States in pursuance of the war. I think the intent must be the specific intent that I have
described and for the reasons that I have given I think that no such intent was proved or existed in fact. I also
think that there is no hint at resistance to the United States as I construe the phrase.

In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I
believe the defendants had as much right to publish as the Government has to publish the Constitution of the
United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from
these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the
necessary intent were shown; the most nominal punishment seems to me all that possible could be inflicted,
unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they
avow-a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to
doubt that it was held here but which, although made the subject of examination at the [250 U.S. 616, 630] trial,
no one has a right even to consider in dealing with the charges before the Court.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or
your power and want a certain result with all your heart you naturally express your wishes in law and sweep away
all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a
man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt
either your power or your premises. But when men have realized that time has upset many fighting faiths, they
may come to believe even more than they believe the very foundations of their own conduct that the ultimate
good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely
can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an
experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon
imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant
against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless
they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an
immediate check is required to save the country. I wholly disagree with the argument of the Government that the
First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had
conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act
July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately
dangerous to leave the correction of evil counsels to time warrants [250 U.S. 616, 631] making any exception to
the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking
only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot
put into more impressive words my belief that in their conviction upon this indictment the defendants were
deprived of their rights under the Constitution of the United States.

Mr. Justice BRANDEIS concurs with the foregoing opinion.

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA
and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them." – Article II, Section 1, Constitution

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

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
 Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan

Party List Bayan Muna

Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any candidate.
Petitioners also conceded that the tarpaulin contains names ofcandidates for the 2013 elections, but not of politicians
who helped in the passage of the RH Law but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City,
issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulin’s removal within three (3) days from receipt for being oversized. COMELEC
Resolution No. 9615 provides for the size requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be given a definite
ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of
legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal of the tarpaulin;
otherwise, it will be constrained to file an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter provides as follows:
Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups with the following names and
messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

 Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of the
said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by three
feet (3’), please order/cause the immediate removal of said election propaganda material, otherwise, we
shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners initiated this case
through this petition for certiorari and prohibition with application for preliminary injunction and temporary
restraining order.14 They question respondents’ notice dated February 22, 2013 and letter issued on February 27, 2013.
They pray that: (1) the petition be given due course; (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from further proceeding in enforcing their orders for the
removal of the Team Patay tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned
orders of respondents as unconstitutional and void, and permanently restraining respondents from enforcing them or
any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining respondents from
enforcing the assailed notice and letter, and set oral arguments on March 19, 2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and prohibition under
Rule 65 of the Rules of Court filed before this court is not the proper remedy to question the notice and letter of
respondents; and (2) the tarpaulin is an election propaganda subject to regulation by COMELEC pursuant to its
mandate under Article IX-C, Section 4 of the Constitution. Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file their respective memoranda within 10
days or by April 1, 2013, taking into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE

AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC
DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC,
WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW
THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.
 WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL
ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS
NOT A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION,

WHETHER THE COMELEC POSSESSES THE AUTHORITY TO REGULATE THE
SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES
THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

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

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION*

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO MARTN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice
No Part
FRANCIS H. JARDELEZA**
Associate Justice
C E R T I F I CAT I O N
I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

G.R. No. 102653 March 5, 1992

NATIONAL PRESS CLUB, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
G.R. No. 102925 March 5, 1992
PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO, JR., as its Past Chairman and
President, and FRAULIN A. PEÑASALES as its Corporate Secretary, petitioners,
vs.
COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN MONSOD, its Chairman; HON.
GUILLERMO CARAGUE and HON. ROSALINA S. CAJUCOM, respondents.
G.R. No. 102983 March 5, 1992
KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI BROADCASTING NETWORK;
MOLAVE BROADCASTING NETWORK; MASBATE COMMUNITY BROADCASTING CO., INC., RADIO
MINDANAO NETWORK, INC.; ABS-CBN BROADCASTING CORP.; FILIPINAS BROADCASTING;
RADIO PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE BROADCASTING CORP.;
MAGILIW COMMUNITY BROADCASTING CO., INC.; for themselves and in behalf of the mass media
owners as a class; ANDRE S. KHAN; ARCADIO M. CARANDANG, JR.; MALOU ESPINOSA
MANALASTAS; MIGUEL C. ENRIQUEZ; JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE
E. ESCANER, JR.; RAY G. PEDROCHE; PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDO
RAMIREZ; for themselves as voters and in behalf of the Philippine electorate as a class; ORLANDO S.
MERCADO and ALEJANDRO de G. RODRIGUEZ; for themselves as prospective candidates and in behalf of
all candidates in the May 1992 election as a class, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

FELICIANO, J.:
In the three (3) consolidated Petitions before us, the common question raised by petitioners is the constitutionality of
Section 11 (b) of Republic Act No. 6646.
Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating
space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the
other for provincial office) in the coming May 1992 elections; and taxpayers and voters who claim that their right to
be informed of election issues and of credentials of the candidates is being curtailed.
It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and violates the
constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by
Section 11 (b) amounts to censorship, because it selects and singles out for suppression and repression with criminal
sanctions, only publications of a particular content, namely, media-based election or political propaganda during the
election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide
adequate channels of public information and public opinion relevant to election issues. Further, petitioners contend
that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or
political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio
and television broadcasts, would bring about a substantial reduction in the quantity or volume of information
concerning candidates and issues in the election thereby curtailing and limiting the right of voters to information and
opinion.
The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of Republic Act
No. 6646, known as the Electoral Reforms Law of 1987:
Sec. 11 Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful;
xxx xxx xxx
b) for any newspapers, radio broadcasting or television station, other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of absence from his work as such during the
campaign period. (Emphasis supplied)
Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P. Blg. 881, known as
the Omnibus Election Code of the Philippines, which provide respectively as follows:
Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall
 be allocated, free of charge, equally and impartially by the Commission among all candidates within
the area in which the newspaper is circulated.
xxx xxx xxx
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the
area of coverage of all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide radio or television time, free
of charge, during the period of the campaign. (Emphasis supplied)
The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of rich and poor
candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests."
Section 11 (b) prohibits the sale or donation of print space and air time "for campaign or other political purposes"
except to the Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the Omnibus
Election Code require the Comelec to procure "Comelec space" in newspapers of general circulation in every province
or city and "Comelec time" on radio and television stations. Further, the Comelec is statutorily commanded to allocate
"Comelec space" and "Comelec time" on a free of charge, equal and impartial basis among all candidates within the
area served by the newspaper or radio and television station involved.
No one seriously disputes the legitimacy or the importance of the objective sought to be secured by Section 11 (b) (of
Republic Act No. 6646) in relation to Sections 90 and 92 (of the Omnibus Election Code). That objective is of special
importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution
between the economic elite and the rest of society, and by the prevalence of poverty, with the bulk of our population
falling below that "poverty line." It is supremely important, however, to note that objective is not only a concededly
legitimate one; it has also been given constitutional status by the terms of Article IX(C) (4) of the 1987 Constitution
which provides as follows:
Sec. 4. The Commission [on Elections] may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor,for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections. (Emphasis supplied)
The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or
utilization of the franchises or permits for the operation of media of communication and information. The fundamental
purpose of such "supervision or regulation" has been spelled out in the Constitution as the ensuring of "equal
opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of
such media facilities, in connection with "public information campaigns and forums among candidates." 1
It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of
expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C)
(4) which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election
period." It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the
press in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the
process by which the people identify those who shall have governance over them. Thus, it is frequently said that these
rights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press
are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities.
In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial
resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given
constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall
guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law." 2
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises
in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing
equal opportunity among candidates for political office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press. For supervision or regulation of the operations of media
enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general,
time-honored one — that a statute is presumed to be constitutional and that the party asserting its unconstitutionality
must discharge the burden of clearly and convincingly proving that assertion. 3
Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the
police power of the State and the requisites for constitutionally valid exercise of that power. The essential question is
whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of
supervision or regulation of the operations of communication and information enterprises during an election period, or
whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute
unconstitutional repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has
not gone outside the permissible bounds of supervision or regulation of media operations during election periods.
In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of the limitations
resulting from the particular measure being assayed upon freedom of speech and freedom of the press are essential
considerations. It is important to note that the restrictive impact upon freedom of speech and freedom of the press of
Section 11 (b) is circumscribed by certain important limitations.
Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of
Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. By its
Resolution No. 2328 dated 2 January 1992, the Comelec, acting under another specific grant of authority by the
Constitution (Article IX [C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as the relevant
election period.
Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows
that it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, 4 of print
space and air time for "campaign or other political purposes." Section 11 (b) does not purport in any way to restrict the
reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their
qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries
and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect
of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs
are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as
reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for
political office. We read Section 11 (b) as designed to cover only paid political advertisements of particular
candidates.
The above limitation in scope of application of Section 11 (b) — that it does not restrict either the reporting of or the
expression of belief or opinion or comment upon the qualifications and programs and activities of any and all
candidates for office — constitutes the critical distinction which must be made between the instant case and that
ofSanidad v. Commission on Elections.5 In Sanidad, the Court declared unconstitutional Section 19 of Comelec
Resolution No. 2167 which provided as follows:
Sec. 19. Prohibition on Columnists, Commentators or Announcers — During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer
or personality shall use his column or radio or television time to campaign for or against the
plebiscite issues.
Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite mandated by R.A. No.
6766 on the ratification or adoption of the Organic Act for the Cordillera Autonomous Region. The Court held that
Resolution No. 2167 constituted a restriction of the freedom of expression of petitioner Sanidad, a newspaper
columnist of the Baguio Midland Courier, "for no justifiable reason." The Court, through Medialdea, J., said:
. . . [N]either Article, IX-C of the Constitution nor Section 11 [b], 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during plebiscite
periods.Media practitioners exercising their freedom of expression during plebiscite periods are
neither the franchise holders nor the candidates. In fact, there are no candidates involved in the
plebiscite.Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory
basis." 6 (Emphasis partly in the original and partly supplied)
There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts from its prohibition
the purchase by or donation to the Comelec of print space or air time, which space and time Comelec is then
affirmatively required to allocate on a fair and equal basis, free of charge, among the individual candidates for elective
public offices in the province or city served by the newspaper or radio or television station. Some of the petitioners are
apparently apprehensive that Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal
basis among the several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by
unequal or unfair allocations effected by Comelec will have appropriate judicial remedies available, so long at least as
this Court sits. Until such time, however, the Comelec is entitled to the benefit of the presumption that official duty
will be or is being regularly carried out. It seems appropriate here to recall what Justice Laurel taught in Angara v.
Electoral Commission7 that the possibility of abuse is no argument against the concession of the power or authority
involved, for there is no power or authority in human society that is not susceptible of being abused. Should it be
objected that the Comelec might refrain from procuring "Comelec time" and "Comelec space," much the same
considerations should be borne in mind. As earlier noted, the Comelec is commanded by statute to buy or "procure"
"Comelec time" and "Comelec space" in mass media, and it must be presumed that Comelec will carry out that
statutory duty in this connection, and if it does fail to do so, once again, the candidate or candidates who feel
aggrieved have judicial remedies at their disposal.
The points that may appropriately be underscored are that Section 11 (b) does not cut off the flow of media reporting,
opinion or commentary about candidates, their qualifications and platforms and promises. Newspaper, radio
broadcasting and television stations remain quite free to carry out their regular and normal information and
communication operations. Section 11 (b) does not authorize any intervention and much less control on the part of
Comelec in respect of the content of the normal operations of media, nor in respect of the content of political
advertisements which the individual candidates are quite free to present within their respective allocated Comelec
time and Comelec space. There is here no "officious functionary of [a] repressive government" dictating what events
or ideas reporters, broadcasters, editors or commentators may talk or write about or display on TV screens. There is
here no censorship, whether disguised or otherwise. What Section 11 (b), viewed in context, in fact does is to
limit paid partisan political advertisements to for a other than modern mass media, and to "Comelec time" and
"Comelec space" in such mass media.
Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves.
The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article
IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio
and television time that the resources of the financially affluent candidates are likely to make a crucial difference.
Here lies the core problem of equalization of the situations of the candidates with deep pockets and the candidates
with shallow or empty pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the
statutory mechanism which Section 11 (b) brings into operation is designed and may be expected to bring about or
promote equal opportunity, and equal time and space, for political candidates to inform all and sundry about
themselves, cannot be gainsaid.
My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial disparity among the candidates is
a fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a
common maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying
mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to
his strained rival." True enough Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of the
Omnibus Election Code, place political candidates on complete and perfect equalityinter se without regard to their
financial affluence or lack thereof. But a regulatory measure that is less than perfectly comprehensive or which does
not completely obliterate the evil sought to be remedied, is not for that reason alone constitutionally infirm. The
Constitution does not, as it cannot, exact perfection in governmental regulation. All it requires, in accepted doctrine, is
that the regulatory measure under challenge bear a reasonable nexus with the constitutionally sanctioned objective.
That the supervision or regulation of communication and information media is not, in itself, a forbidden modality is
made clear by the Constitution itself in Article IX (C) (4).
It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech of the
candidates themselves may be seen to be not unduly repressive or unreasonable. For, once again, there is nothing in
Section 11 (b) to prevent media reporting of and commentary on pronouncements, activities, written statements of the
candidates themselves. All other fora remain accessible to candidates, even for political advertisements. The requisites
of fairness and equal opportunity are, after all, designed to benefit the candidates themselves.
Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be totally
disregarded. Realistically, the only limitation upon the free speech of candidates imposed is on the right of candidates
to bombard the helpless electorate with paid advertisements commonly repeated in the mass media ad
nauseam. Frequently, such repetitive political commercials when fed into the electronic media themselves constitute
invasions of the privacy of the general electorate. It might be supposed that it is easy enough for a person at home
simply to flick off his radio of television set. But it is rarely that simple. For the candidates with deep pockets may
purchase radio or television time in many, if not all, the major stations or channels. Or they may directly or indirectly
own or control the stations or channels themselves. The contemporary reality in the Philippines is that, in a very real
sense, listeners and viewers constitute a "captive audience." 8
The paid political advertisement introjected into the electronic media and repeated with mind-deadening frequency, are commonly intended and crafted, not so much to inform
and educate as to condition and manipulate, not so much to provoke rational and objective appraisal of candidates' qualifications or programs as to appeal to the non-intellective
faculties of the captive and passive audience. The right of the general listening and viewing public to be free from such intrusions and their subliminal effects is at least as
important as the right of candidates to advertise themselves through modern electronic media and the right of media enterprises to maximize their revenues from the marketing of
"packaged" candidates.

WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No pronouncement as to
costs.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Bidin, Griño-Aquino, Medialdea, Regalado, Romero and Nocon, JJ., concur.
Bellosillo, J., took no part.

Separate Opinions

DAVIDE, JR., J.: concurring:

I fully concur with the majority opinion. I wish, however, to express my thoughts on some material points.
The constitutional issue raised in these cases must be decided in the light of the provisions of our own Constitution
and not on orthodox principles or classical definitions of certain rights which have, in the course of time and as a
result of the interplay of societal forces requiring the balancing of interests and values, been unchained from their
absolutist moorings.
It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is
not an absolute right.
Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the right or privilege
of free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its
limitations; the right is not absolute at all times and under all circumstances, although limitations are recognized only
in exceptional cases. Freedom of speech does not comprehend the right to speak whenever, however, and wherever
one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled."1
The foregoing rule proceeds from the principle that every right or freedom carries with it the correlative duty to
exercise it responsibly and with due regard for the right and freedoms of others. In short, freedom is not freedom from
responsibility, but with responsibility.
I respectfully submit that there can be no higher form of limitation to a right than what the Constitution itself
authorizes. On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of speech or expression
and of the press vis-a-vis the electoral process, the present Constitution lays downs certain principles authorizing
allowable restraints thereon. I refer to the. following provisions of the 1987 Constitution, to wit:
(1) Section 26 of Article II. (Declaration of Principle and other Policies) which reads:
The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (emphasis supplied)
 (2) Section 1 of Article XIII (Social Justice and Human rights) which reads:
The congress shall give highiest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic,
andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth andpolitical power for the common good. (emphasis supplied)
(3) Section 4 of Article IX-C which provides:
The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary.Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections. (emphasis supplied)
There can be no doubt that the first two (2) provisions contemplate measures that would bridge the gap between the
rich and the poor in our society. In the past, the equilibrium sought to be achieved was only in the economic and social
fields. Thus, before the advent of the 1987 Constitution, social justice was defined as:
Social Justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so that justice
in its rational and objectively secular conception may at least be approximated. Social justice means
the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the existence of all governments on the
time-honored principle ofsalus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and evenly
extended to all groups as a combined force in our social and economic life, consistent with the
fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest good to the greatest number." 2
Aware of the lamentable fact that in the Philippines, no gap between these two unavoidable extremes of society is
more pronounced than in the field of politics, and ever mindful of the dire consequences thereof, the framers of the
present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the
elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an
exception. Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting
chance. Of course, there have been isolated instances — but yet so few and far between — when poor candidates
made it.
Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focusing strictly on the
legitimate aspect of the electoral struggle, propaganda, through the various forms of media, provides the most
sophisticated and effective means of reaching the electorate and convincing voters to vote for a particular candidate. It
is in this area, particularly in the use of television, radio and newspaper, that a poor candidate will not be able to
compete with his opulent opponents who have all the resources to buy prime television and radio time and full pages
of leading newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely relax in
their homes, offices or hotel suites, can reach every nook and cranny of their municipality, city, province, district or
even the entire Philippines and be seen or heard at any time of the day and night. During the contracted hours, their
paid hacks can concentrate on dishonoring the poor and hapless opponent by hurling innuendoes of defects or vice.
With newspaper advertisements, the wealthy candidates can reach thousands of readers daily. A worse scenario
obtains where the rich candidates themselves fully or substantially own or operate a television or radio station, or
publish newspapers. On the other hand, to a poor candidate, the campaign period would sadly prove to be insufficient
for him to campaign in every barangay, even if he is running for a municipal position. Thus, not only would he already
be at a disadvantage insofar as visibility and presentation of his issues or program of government are concerned, he
would have no opportunity to rebut whatever lies his opponents may spread nor the chance to clear himself of false
accusations.
Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress passed a measure,
R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, 3 introducing additional reforms to the
electoral system which, inter alia, not only seeks to enhance the purity of the electoral process, but also aspires to
ensure even just an approximation of equality among all candidates in their use of media for propaganda purposes.
The latter is best evidenced by the provision challenged in this case, Section 11 (b), which reads:
Section 11. Prohibited forms of election propaganda. — In addition to the forms of propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign period.
This provision, understood in the light of Section 4, Article IX-C of the Constitution, is a reasonable regulation
enacted to accomplish the desired objectives and purposes earlier mentioned. It neither constitutes proscribed
abridgment of the freedom of expression nor prohibits free speech; it merely provides the rules as to the manner, time
and place for its exercise during a very limited period. It makes reference to Sections 90 and 92 of Batas Pambansa
Blg. 881 on "COMELEC time" and "COMELEC space." Said sections read in full as follows:
Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated. (Sec. 45, 1978 EC)
xxx xxx xxx
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the
area of coverage of all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide radio or television time, free
of charge, during the period of the campaign. (Sec. 46, 1978 EC)
Obviously then, the airing and printing of a candidate's political advertisements can be done — and is even
encouraged to be done — during the "COMELEC time" and within the "COMELEC space." This authority of the
COMELEC is no longer purely statutory. It is now constitutional pursuant to the clear mandate of Section 4 of Article
IX-C, which is quoted above. This constitutional grant removes whatever doubt one may have on the split verdict of
this Court in Badoy vs. Ferrer, et al., 4 Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the area in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all
the names of all other candidates in the district in which the candidate is running are also mentioned
with equal prominence.
this Court ruled:
 Against the background of such facilities accorded by the law for all candidates, rich and poor alike,
and the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration
and the equality or chances among the candidates, the restriction on the freedom of expression of the
candidate or any other individual prescribed in par. F of Sec. 12 is so narrow as not to affect the
substance and vitality of his freedom of expression itself.
xxx xxx xxx
Hence, consistent with out opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs.
Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F Sec. 12, it only one of the many devices employed by the law
to prevent a clear and present danger of the perversion or prostitution of the electoral apparatus and
of the denial of the equal protection of the laws.
The fears and apprehensions of petitioner concerning his liberty of expression in these two cases,
applying the less stringent balancing -of-interests criterion, are far outweighed by the all important
substantive interests of the State to preserve the purity of the ballot and to render more meaningful
and real the guarantee of the equal protection of the laws.
In the fairly recent case of Sanidad vs. Commission on Elections, 5 this Court sustained, in effect, the validity of
Section 11(b) of R.A. No. 6646. Thus:
However, it is clear from Act. IX-C of the 1987 Constitution that what was granted to the Comelec
was the power to supervise and regulate the use and enjoyment of franchises, permits or other
grantsissued for the operation of transportation or other public utilities, media of communication or
information to the end that equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates are
ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder
may favor or give any undue advantage to a candidate in terms of advertising space or radio or
television time. This is also the reason why a columnist, commentator, announcer or personality, who
is a candidate for any elective office is required to take a leave of absence from his work during the
campaign period (2nd par. Section 11 (b) R.A. 6646). It cannot be gainsaid that a columnist or
commentator who is also a candidate would be more exposed to the voters to the prejudice of other
candidates unless required to take a leave of absence.
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during plebiscite periods.
Media practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite.
Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition
is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the
electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented
in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes
are taken in an area on some special political matter unlike in an election where votes are cast in
favor of specific persons for some office. In other words, the electorate is asked to vote for or against
issues, not candidates in a plebiscite.
Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged provision, the
doubt must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs. Executive Secretary,
et al.: 6
. . . it is in accordance with the settled doctrine that between two possible constructions, one avoiding
a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That
which will save, not that which will destroy, commends itself for acceptance. After all, the basic
presumption all these years is one of validity. The onerous task of proving otherwise is on the party
seeking to nullify a statute. It must be proved by clear and convincing evidence that there is an
 infringement of a constitutional provision, save in those cases where the challenged act is void on its
face. Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-
founded, does not suffice. Justice Malcolm's aphorism is apropos: "To doubt is to sustain." 7
The reason for this is that an act of the legislature approved by the executive is presumed to be within constitutional
bounds. The responsibility of upholding the Constitution rests not only on the courts, but also on the legislature and
the executive as well.
For the Court to strike our their acts as unconstitutional, nothing less than clear and convincing evidence of such
breach of the Constitution must be shown.
Petitioners have not acquitted themselves of that duty. The petitions then must be dismissed for lack of merit.

PADILLA, J.: concurring:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.
Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987," challenged in these
petitions, states that:
Sec. 11. Prohibited Forms of Election Propaganda — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign period.
Petitioners contend that the provision is void because it is violative of the freedoms of the press, speech and
expression as guaranteed by Article III, Section 4 of the Constitution.
But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate exercise of its
police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property,
(2) in order to foster the common good.
xxx xxx xxx
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable and individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare." Significantly, the Bill of rights itself does not
purport to be an absolute guaranty of individual rights and liberties. "Even liberty itself, the greatest
of all rights, is not unrestricted license to act according to one's will." It is subject to the far more
overriding demands and requirements of the greater number. 1
Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this
reason, it is co-extensive with the necessities of the case and the safeguards of public interest. 2
In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal access to
opportunities for public service. 3 Opportunity to hold a public office for public service, particularly elective public
offices must be equally accessible to qualified and deserving citizens. Corollary to this, the legislature also recognizes
the power of the Commission on Elections (COMELEC) to supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of media of communication or information granted by the government or any
subdivision, agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefore, for public information campaigns
and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible
elections." 4
In Pablito V. Sanidad vs. The Commission on Elections, 5 we held that the evil sought to be prevented by Art. IX-C,
Section 4 of the Constitution is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time.
In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act
as an equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a
myriad of campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign
would result in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print
space and air time, and yet, they may be equally qualified and deserving candidates. In Anacleto D. Badoy, Jr. vs.
Jaime N. Ferrer, et al., G.R. NO.
L-32546, October 17, 1970, 35 SCRA 285, this Court declared Section 12(F) of R.A. No. 6132 valid and
constitutional, recognizing that the purpose of the limitation, on the freedom of the candidate or his sympathizer to
spend his own money for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give
the poor candidates a fighting chance in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize,
if not approximate, equality of chances among the various candidates for elective public office.
Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space or air time for
campaign or other political purposes, access to print space and air time would be given equally to all candidates.
Nevertheless, as opined by the COMELEC, the means to gain access to said time and space would be unequal among
all candidates. Hence, there would be in the final analysis, inequality.
Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign purposes will open the
floodgates to corruption in public office because a winning candidate who overspends during the election period must
necessarily recover his campaign expenses by "hook or crook". Section 11 of R.A. No. 6646 would indirectly
constitute a positive and effective measure against corruption in public office.
Petitioners also contend that the challenged provision is "violative of the people's right to information particularly
about the conduct of public officials including the character and qualifications of candidates seeking public office."
I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision in expressing
its mandate — no sufficient fora to detect and decide for themselves who, among the candidates truly deserve their
votes. 6
Aside from Sec. 11 (b) of R.A. No. 6646 providing for Comelec space and Comelec time, Sections 9 and 10 of the
same law afford a candidate several venues by which the can fully exercise his freedom of expression, including
freedom of assembly. The electorate, in turn, are given opportunities to know the candidates and be informed of their
qualifications and platforms.
As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan private or
civic organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for
the same office may simultaneously and personally participate to present, explain, and/or debate on their campaign
platforms and programs and other like issues. Section 10, on the other hand, allows the candidates the use of the
designated common poster areas to post, display and exhibit election propaganda to announce or further their
candidacy; not to mentioned the right to hold political caucuses. conferences, meetings, rallies, parades, or other
assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for a candidate;
publishing or distributing campaign literature or materials designed to support the election of any candidate; and
directly or indirectly solicit votes, pledges or support for a candidate. 7
In short, the law in question (Sec. 11, Rep. Act No. 6646) has been enacted for a legitimate public purpose and the
means it employs to achieve such purpose are reasonable and even timely.
Based on all the foregoing consideration, I vote to sustain the validity and constitutionality of Section II of R.A. No.
6646.
GUTIERREZ, JR., J., dissenting:
I am saddened by the readiness with which Congress, Comelec, and the members of this Court are willing to sacrifice
not only that most precious clause of the Bill of Rights — freedom of speech and of the press — but also the right of
every citizen to be informed in every way possible about the qualifications and programs of those running for public
office.
Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the voters ignorant of who the candidates are
and what they stand for.
With elections fast approaching, the surveys show that almost half of the nation's voters are undecided as to the
Presidency. Certainly, they do not know who are running for the Senate.
The implementation of Section 11 (b) will result in gross inequality. A cabinet member, an incumbent official, a movie
star, a basketball player, or a conspicuous clown enjoys an unfair advantage over a candidate many times better
qualified but lesser known.
I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio, former NBI
Director; Estelito P. Mendoza, former Solicitor General and Governor; and Florangel Rosario Braid, member of the
Constitutional Commission and distinguished mass communication personality (to name only three) are also running
for the Senate. We owe it to the masses to open all forms of communication to them during this limited campaign
period. A candidate to whom columnists and radio-television commentators owe past favors or who share their
personal biases and convictions will get an undue amount of publicity. Those who incur the ire of opinion makers
cannot counteract negative reporting by buying his own newspaper space or airtime for the airing of his refutations.
Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to the task keeping
registration lists clean and had to repeat the exercise in critical areas. It should now husband its resources for its real
function — insuring the integrity of the voting process and safeguarding the true results of the elections.
Why Comelec should also supervise the publicity campaigns of almost 100,00 candidates running for 17,000 national
and local positions is beyond my poor power to comprehend.
I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the fresh,
imaginative, and personal appeal of advertisements espousing a cause or reaching a particular audience.
Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed
during the limited period of the election campaign when information is most needed. Moreover, the mere thought that
published materials are supervised by a government office is enough to turn the reader off. Only faithful followers
who already know for whom they are voting will bother to read the statements of their chosen candidate in the
Comelec corner of the newspapers.
The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited period. The
amount which a political party or candidate may spend is restricted. Added to the confines of the limited
period andrestricted expenses, the law now imposes a violation of the candidates' freedom of speech and the voters'
freedom to know.
I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant style. We should
not allow the basic freedom of expression to be sacrificed at the alter of infinitely lesser fears and concerns. Under the
clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to
be avoided must be so substantive as to justify a clamp over one's mouth or, a writing instrument to be stilled.
In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one short of the 2/3
majority needed to invalidate the law) deemed a less restrictive statute as unconstitutional. The four (4) Justices who
allowed the law to remain did so only because there were various safeguards and provisos. Section 11(b) of R.A. No.
6646 now removes one of those safeguards.
The then Justice Fred Ruiz Castro stated:
What of the social value and importance of the freedoms impaired by Section 50-B? The legislation
strikes at the most basic political right of the citizens in a republican system, which is the right
actively to participate in the establishment or administration of government. This right finds
expression in multiple forms but it certainly embraces that right to influence the shape of policy and
law directly by the use of ballot. It has been said so many times it scarcely needs to be said again, that
the realization of the democratic ideal of self-government depends upon an informed and committed
 electorate. This can be accomplished only by allowing the fullest measure of freedom in the public
discussion of candidates and the issues behind which they rally; to this end, all avenues of persuasion
— speech, press, assembly, organization — must be kept always open. It is in the context of the
electoral process that these fundamental rights secured by the Constitution assume the highest social
importance. (at page 904; Emphasis supplied)
I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the choice of the nation's
leaders. I vote to declare the challenged legislation unconstitutional.
CRUZ, J., dissenting:
It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is
nothing more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty
in another obeisance to the police state, which we so despised during the days of martial law. I cannot share in the
excuses of the Court because I firmly believe that the highest function of authority is to insure liberty.
In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. May
quarrel is with the way the objective is being pursued for I find the method a most indefensible repression. It does
little good, I should think, to invoke the regularity authority of the Commission on Elections, for that power is not a
license to violate the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject
to the requirements of the police power which the ponencia seems to disdain.
It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the
challenged at is presumed to be valid in deference to the political departments. But not — and this represents a
singular exception — where the act is claimed to violate individual liberty, most importantly the freedom of
expression. In such a vital and exceptional case, as in the case now before us, I respectfully submit that the
presumption must be reversed in favor of the challenge.
Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above
all liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the
communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights
include the equally important freedom of the press, the right of assembly and petition, the right to information on
matters of public concern, the freedom of religion insofar as it affects the right to form associations as an instrument
for the ventilation of views bearing on the public welfare.
Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the
quaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the
hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most
cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that
is first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of
the press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972.
The reason for this precaution is that freedom
of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be
wielded by every citizen in the
land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart
to use it.
As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and
suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a
duty. From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full
deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to
be the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options,
let alone the latitude with which they are considered, can insure a far better choice than that made by the heedless
dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.
The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are
communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression
protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify
meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of
belligerence. The individual can convey his message in a poem or a novel or a tract or in a public speech or through a
moving picture or a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be
heeded, for a acceptability will depend on the quilty of his thoughts and of his persona, as well as the mood and
motivation of his audience. But whatever form he employs, he is entitled to the protection of the Constitution against
any attempt to muzzle his thoughts.
There is one especially significant way by which the citizen can express his views, and that is through the ballot. By
the votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the
various elective offices in the government, from the highest position of President of the Philippines to that of the
lowly member of the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his
intelligence (or lack of it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any
other candidate with no known distinction except the presumptuousness to seek elective office. Fortunately, there are
also other candidates deserving of the support of the circumspect and thinking citizens who will use their suffrages
conscientiously with only the public interest as their criterion and guide.
It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they
are allowed to campaign during the election period. Such campaign includes their personally visiting the voters in
house-to-house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-
serving leaflets extolling their virtues, giving away buttons and stickers and sample ballots and other compaign
materials, and holding caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to
do in the specified places and at the proper time provided only that they do not exceed the maximum limit of election
expenses prescribed by the Election Code at the rate of P1.50 for every voter currently registered in the constituency
where they filed their certificate of candidacy. 1
It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the
prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or
placards or posters or meetings to reach the electorate, incurring for this purposes a not inconsiderable amount of his
or his supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of
mass communications, even for free. Employment of these facilities is allowed only through the respondent
Commission on Elections, which is directed by the Election Code to procure newspaper space and radio and television
time to be distributed among the thousands of candidates vying throughout the land for the thousands of public offices
to be filled in the coming elections.
There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights,
the freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason
is the language of Article III, Section 4, of the Constitution, which provides without qualification:
No law shall be passed abridging the freedom of speech, of expression or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievances.
This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated
by law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better
policy is to assume that every right, including even the freedom of expression, must be exercised in accordance with
law and with due regard for the rights of others.
In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully
questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that
wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting
them to certain places and hours and under specified conditions, in the interest of peace and security, public
convenience, and in one case, even to prevent disturbance of the rites in a nearby church. 2Under the Public Assembly
Act, a permit from the mayor shall be necessary for the holding of a public meeting except where the gathering is to
be held in a private place or the campus of a government-owned or controlled educational institution or a freedom
park.
All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to
restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as
established by this Court in a long line of decisions. These requisites are:
1) the interests of the public generally as distinguished from those of a particular class require the exercise of the
police power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sough to be
achieved and not unduly oppressive upon individuals. 3 In simpler terms, the police measure, to be valid, must have a
lawful objective and a lawful method of achieving it.
The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent
disparity between the rich and the poor candidates by denying both of them access to the mass media and thus
preventing the former from enjoying an undue advantage over the latter. There is no question that this is a laudable
goal. Equality among the candidates in this regard should be assiduously pursued by the government if the aspirant
with limited resources is to have any chance at all against an opulent opponent who will not hesitate to use his wealth
to make up for his lack of competence.
But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may
be employed even if it may not be the best among the suggested options. In my own view, the method here applied
falls far short of the constitutional criterion. I believe that the necessary reasonable link between the means employed
and the purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.
The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the
limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that
while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on
other campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies
and meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited
mass media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot
be matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By
the same token, the rich candidates may visit more houses, send more letters, make more telephone appeals, distribute
more campaign materials, incurring for all these more expenses than the poor candidates can afford. But these
advantages are allowed by the law because they do not involve the use of mass media space and time.
And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is
raised for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would
be prohibited under the law although the rich candidates clearly has in this case no advantage over his adversary.
And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio
commentator who is apparently expressing his own opinion without financial consideration or inducement? This is not
prohibited by Section 11(b) simply because the endorsement does not appear to have been purchased by the
candidates or given to him for free.
The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of
candidates running all over the country for the offices of President of the Philippines, Vice-President, senators,
representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and
councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the
candidates would involve administrative work of unmanageable proportions, and the possibility as well of unequal
distribution, whether deliberate or unintentional, that might create more serious problems than the problem at hand.
It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to
resolve and its resolution may not be reviewed by the courts of justice. In the case of the police power, however, it is
required that there be a plausible nexus between the method employed and the purpose sought to be achieved, and
determination of this link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as
remarked by Justice Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that
what the law has done was valid to begin with. The trouble with the challenged law is that it hasexceeded what it
should have done, thereby becoming both inefficacious and arbitrary. As such, it must be slain.
But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In
a word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should
he be so rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility
of finding a man base enough to accept the office of censor and at the same time good enough to perform its duties.
Yet a pretender to that meddler is in our midst today, smugly brandishing the threat of this miserable law.
One could perhaps concede some permissible instances of censorship, as where private mail is screened during
wartime to prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the
national security or where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded
theater. But these exceptions merely make and bolster the rule that there should be no prior restraint upon a person's
right to express his ideas on any subject of public interest. The rule applies whether the censorship be in the form of
outright prohibition, as in the cases before us, or in more subtle forms like the imposition of tax upon periodicals
exceeding a prescribed maximum number of copies per issue 4 or allowing the circulation of books only if they are
judged to be fit for minors, thus reducing the reading tastes of adults to the level of juvenile morality. 5
I remind the Court of the doctrine announced in Bantam Books v.
Sullivan 6 that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against
its validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision
appears quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to
justify it in the name of social justice and clean elections cannot prevail over the self-evident fact that what we have
here is an illegal intent to suppress free speech by denying access to the mass media as the most convenient
instruments for the molding of public opinion. And it does not matter that the use of these facilities may involve
financial transactions, for the element of the commercial does not remove them from the protection of the
Constitution. 7
The law is no less oppressive on the candidates themselves who want and have the right to address the greatest
number of voters through the modern facilities of the press, radio and television. Equally injured are the ordinary
citizens, who are also entitled to be informed, through these mass media, of the qualifications and platforms of the
various candidates aspiring for public office, that they may be guided in the choice they must make when they cast
they ballots. 8
I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on the choice of our elective officials. It is truly alarming
that elections in a growing number of cases have become no more than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce.
The offer of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the elemental struggle for survival. That there are
millions of such persons can only compound this terrible situation. But what makes it especially revolting is the way these helpless persons are manipulated and imposed upon
and tantalized to surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy themselves into elective office —
these are the real saboteurs of democracy. These are the scoundrels who would stain the pristine ballot in their cynical scheme to usurp public office by falsifying the will of the
people. Section 11(b) aims to minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on
Elections relies heavily on Badoy v. Commission on Elections 9 to sustain the exercise of its authority to regulate and
supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the
present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No.
6132 providing as follows:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the areas in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all
the names of all other candidates in the district in which the candidate is running are also mentioned
with equal prominence.
The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo),
declared:
Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of
R.A. No. 6132 designed to maximize, if not approximate, equality of chances among the various
candidates in the same district, the said restriction on the freedom of expression appears too
insignificant to create any appreciable dent on the individual's liberty of expression.
What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the
candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What
Section 11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that
finds no justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass
media as a vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to
create any appreciable dent on the individual's liberty of expression."
What is in point is Sanidad v. Commission on Elections, 10 where this Court, through Mr. Justice Medialdea,
unanimously declared unconstitutional a regulation of the Commission on Elections providing as follows:
Sec. 19. Prohibition on columnists, commentators or announcer. — During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer
 or personality shall use his column or radio or television time to campaign for or against the
plebiscite issues.
On the argument that the said persons could still express their views through the air time and newspaper space to be
allocated by the respondent, the Court declared:
Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not
absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against
the organic act because he may do so through the Comelec space and/or Comelec radio/television
time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of
expression, it is still restriction on his choice of the forum where he may express his view. No reason
was advanced by respondent to justify such abridgment. We hold that this form of regulation is
tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. (Emphasis
supplied)
This decision was promulgated without a single dissent, even from the incumbent members then who are now
sustaining Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in
this decision upholding the prohibition in question.
The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight
of the poor candidate thus:
Respondent Commission invites appreciation of the realities of present-day political campaigns. In
today's election competitions the success of one's candidacy rests to a great extent on the candidate's
ability to match the financial and material resources of the other. Where a candidate is given limitless
opportunity to take his campaign to areas of persuasion through the media, what is left of a winning
chance for a poor, if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act
No. 6646, a wealthy candidate could block off an opponent of lesser means from the public view by
buying all print space in newspapers and air time in radio and television.
I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the
poor candidates vis-a-vis a wealthy opponent determined to win at all cost (which he can afford). However, for all its
anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the
Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.
The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or
could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not
be carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the
Constitution to supervise or regulate the operations of the mass media in connection with election matters, and we
may expect that it will use this power to prevent the monopoly it fears, which conceivably will consume all the funds
the candidate is allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as
long as he does not exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere
fact that the poor candidate can spend only a small fraction of that amount does not prevent the rich candidate from
spending all of it if he is so minded. This may be a heartless way of putting it, but that is in fact how the law should be
interpreted. The Election Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the
rich candidate shall spend only the same amount as the poor candidates can afford.
I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be
exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our
intelligence and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the
free society. As part of the larger picture, these impositions are only minor irritations that, placed in proper
perspective, should not justify the withdrawal of the great an inalienable liberty that is the bedrock of this Republic. It
is best to remember in this regard that freedom of expression exists not only for the though that agrees with us, to
paraphrase Justice Holmes, but a also for the thought that we abhor.
I submit that all the channels of communication should be kept open to insure the widest dissemination of information
bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the
officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is
important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for
public office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible
aberration of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume
of victory.
For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the
challenged law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the
Constitution that will ruthlessly bleed it white, and with it this most cherished of our freedoms.
PARAS, J., dissenting:
In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like efficiency,
rendered a decision which in the interest of accuracy and candidness, I would like to turn — the serious attack on our
freedom of expression. It is sad but I have no choice except to say that I dissent.
The freedom to advertise one's political candidacy in the various forms of media is clearly a significant part of our
freedom of expression and of our right of access to information. Freedom of expression in turn in includes among
other things, freedom of speech and freedom of the press. Restrict these freedoms without rhyme or reason, and you
violate the most valuable feature of the democratic way of life.
The majority says that the purpose of the political advertisement provision is to prevent those who have much money
from completely overwhelming those who have little. This is gross errors because should the campaign for votes be
carried out in other fora (for example, rallies and meetings) the rich candidate can always be at a great advantage over
his less fortunate opponent. And so the disparity feared will likewise appear in campaigns other than through media. It
is alleged also that the candidate with money can purchase for himself several full page advertisements, making his
poor opponents really poor in more ways than one. This is not realistic for the poor opponents may, for certain reasons
be given or favored with advertisements free of charge, and money will not be needed in this case. And yet under the
statute in question, even free or gratuitous advertisements in print, in radio or in television are included in the
prohibition. And then again, it is contended by the majority that a poor candidate can still make use of media by
consenting to interviews and news reports about this campaign, which interviews and reports are, according to the
majority still allowable. But then these interviews and news reports are still subtle advertisements and they can be had
if a candidate deliberately looks for media practitioners to inner view him or to write about him. If the majority is to
be consistent, these interviews and news reports should also be disallowed. A case in point is the senatorial candidate
who was interviewed on television last Tuesday (March 3, 1992). Portions of the interview follow:
Q In 19___, were you not the Secretary of _____________?
A Yes, I was.
Q When you were Secretary, did you not accomplish the following?
A (Interviewer then enumerated various accomplishments.)
Q Yes, I did.
There can be no doubt that this interview is disguised propaganda, and yet, if we follow the majority opinion, this is
allowable. Is this not
illogical — that is , if the ban stays?
And then again, if we were to consider the ban as constitutional, the "unknown" or "lesser known" candidates would
be at a distinct disadvantage. They will have to hold numerous rallies (spending oodles and oodles of money). And
only those who had previously received public exposure by dint of government service or by prominence in the
movies, in music, in sports, etc. will be the ones "recalled" by the voters. This will indeed be unfortunate for our
country.
It is true that freedom of speech and freedom of the press are not absolute, and that they have their own limitations.
But I do not see how these limitations can make the disputed prohibition valid and constitutional.
I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and eminently
unconstitutional.

Separate Opinions
DAVIDE, JR., J., concurring:
I fully concur with the majority opinion. I wish, however, to express my thoughts on some material points.
The constitutional issue raised in these cases must be decided in the light of the provisions of our own Constitution
and not on orthodox principles or classical definitions of certain rights which have, in the course of time and as a
result of the interplay of societal forces requiring the balancing of interests and values, been unchained from their
absolutist moorings.
It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is
not an absolute right.
Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the right or privilege
of free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its
limitations; the right is not absolute at all times and under all circumstances, although limitations are recognized only
in exceptional cases. Freedom of speech does not comprehend the right to speak whenever, however, and wherever
one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled."1
The foregoing rule proceeds from the principle that every right or freedom carries with it the correlative duty to
exercise it responsibly and with due regard for the right and freedoms of others. In short, freedom is not freedom from
responsibility, but with responsibility.
I respectfully submit that there can be no higher form of limitation to a right than what the Constitution itself
authorizes. On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of speech or expression
and of the press vis-a-vis the electoral process, the present Constitution lays downs certain principles authorizing
allowable restraints thereon. I refer to the. following provisions of the 1987 Constitution, to wit:
(1) Section 26 of Article II. (Declaration of Principle and other Policies) which reads:
The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (emphasis supplied)
(2) Sec 1 of Article XIII (Social Justice and Human rights) which reads:
The congress shall give highiest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic,
andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth andpolitical power for the common good. (emphasis supplied)
(3) Section 4 of Article IX-C which provides:
The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary.Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections. (emphasis supplied)
There can be no doubt that the first two (2) provisions contemplate measures that would bridge the gap between the
rich and the poor in our society. In the past, the equilibrium sought to be achieved was only in the economic and social
fields. Thus, before the advent of the 1987 Constitution, social justice was defined as:
Social Justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so that justice
in its rational and objectively secular conception may at least be approximated. Social justice means
the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or extra-
 constitutionally, through the exercise of powers underlying the existence of all governments on the
time-honored principle ofsalus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and evenly
extended to all groups as a combined force in our social and economic life, consistent with the
fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest good to the greatest number." 2
Aware of the lamentable fact that in the Philippines, no gap between these two unavoidable extremes of society is
more pronounced than in the field of politics, and ever mindful of the dire consequences thereof, the framers of the
present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the
elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an
exception. Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting
chance. Of course, there have been isolated instances — but yet so few and far between — when poor candidates
made it.
Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focusing strictly on the
legitimate aspect of the electoral struggle, propaganda, through the various forms of media, provides the most
sophisticated and effective means of reaching the electorate and convincing voters to vote for a particular candidate. It
is in this area, particularly in the use of television, radio and newspaper, that a poor candidate will not be able to
compete with his opulent opponents who have all the resources to buy prime television and radio time and full pages
of leading newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely relax in
their homes, offices or hotel suites, can reach every nook and cranny of their municipality, city, province, district or
even the entire Philippines and be seen or heard at any time of the day and night. During the contracted hours, their
paid hacks can concentrate on dishonoring the poor and hapless opponent by hurling innuendoes of defects or vice.
With newspaper advertisements, the wealthy candidates can reach thousands of readers daily. A worse scenario
obtains where the rich candidates themselves fully or substantially own or operate a television or radio station, or
publish newspapers. On the other hand, to a poor candidate, the campaign period would sadly prove to be insufficient
for him to campaign in every barangay, even if he is running for a municipal position. Thus, not only would he already
be at a disadvantage insofar as visibility and presentation of his issues or program of government are concerned, he
would have no opportunity to rebut whatever lies his opponents may spread nor the chance to clear himself of false
accusations.
Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress passed a measure,
R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, 3 introducing additional reforms to the
electoral system which, inter alia, not only seeks to enhance the purity of the electoral process, but also aspires to
ensure even just an approximation of equality among all candidates in their use of media for propaganda purposes.
The latter is best evidenced by the provision challenged in this case, Section 11 (b), which reads:
Section 11. Prohibited forms of election propaganda. — In addition to the forms of propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign period.
This provision, understood in the light of Section 4, Article IX-C of the Constitution, is a reasonable regulation
enacted to accomplish the desired objectives and purposes earlier mentioned. It neither constitutes proscribed
abridgment of the freedom of expression nor prohibits free speech; it merely provides the rules as to the manner, time
and place for its exercise during a very limited period. It makes reference to Sections 90 and 92 of Batas Pambansa
Blg. 881 on "COMELEC time" and "COMELEC space." Said sections read in full as follows:
 Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated. (Sec. 45, 1978 EC)
xxx xxx xxx
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the
area of coverage of all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide radio or television time, free
of charge, during the period of the campaign. (Sec. 46, 1978 EC)
Obviously then, the airing and printing of a candidate's political advertisements can be done — and is even
encouraged to be done — during the "COMELEC time" and within the "COMELEC space." This authority of the
COMELEC is no longer purely statutory. It is now constitutional pursuant to the clear mandate of Section 4 of Article
IX-C, which is quoted above. This constitutional grant removes whatever doubt one may have on the split verdict of
this Court in Badoy vs. Ferrer, et al., 4 Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the area in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all
the names of all other candidates in the district in which the candidate is running are also mentioned
with equal prominence.
this Court ruled:
Against the background of such facilities accorded by the law for all candidates, rich and poor alike,
and the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration
and the equality or chances among the candidates, the restriction on the freedom of expression of the
candidate or any other individual prescribed in par. F of Sec. 12 is so narrow as not to affect the
substance and vitality of his freedom of expression itself.
xxx xxx xxx
Hence, consistent with out opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs.
Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F Sec. 12, it only one of the many devices employed by the law
to prevent a clear and present danger of the perversion or prostitution of the electoral apparatus and
of the denial of the equal protection of the laws.
The fears and apprehensions of petitioner concerning his liberty of expression in these two cases,
applying the less stringent balancing -of-interests criterion, are far outweighed by the all important
substantive interests of the State to preserve the purity of the ballot and to render more meaningful
and real the guarantee of the equal protection of the laws.
In the fairly recent case of Sanidad vs. Commission on Elections, 5 this Court sustained, in effect, the validity of
Section 11(b) of R.A. No. 6646. Thus:
However, it is clear from Act. IX-C of the 1987 Constitution that what was granted to the Comelec
was the power to supervise and regulate the use and enjoyment of franchises, permits or other
grantsissued for the operation of transportation or other public utilities, media of communication or
information to the end that equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates are
ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder
may favor or give any undue advantage to a candidate in terms of advertising space or radio or
 television time. This is also the reason why a columnist, commentator, announcer or personality, who
is a candidate for any elective office is required to take a leave of absence from his work during the
campaign period (2nd par. Section 11 (b) R.A. 6646). It cannot be gainsaid that a columnist or
commentator who is also a candidate would be more exposed to the voters to the prejudice of other
candidates unless required to take a leave of absence.
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during plebiscite periods.
Media practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite.
Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition
is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the
electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented
in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes
are taken in an area on some special political matter unlike in an election where votes are cast in
favor of specific persons for some office. In other words, the electorate is asked to vote for or against
issues, not candidates in a plebiscite.
Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged provision, the
doubt must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs. Executive Secretary,
et al.: 6
. . . it is in accordance with the settled doctrine that between two possible constructions, one avoiding
a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That
which will save, not that which will destroy, commends itself for acceptance. After all, the basic
presumption all these years is one of validity. The onerous task of proving otherwise is on the party
seeking to nullify a statute. It must be proved by clear and convincing evidence that there is an
infringement of a constitutional provision, save in those cases where the challenged act is void on its
face. Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-
founded, does not suffice. Justice Malcolm's aphorism is apropos: "To doubt is to sustain." 7
The reason for this is that an act of the legislature approved by the executive is presumed to be within constitutional
bounds. The responsibility of upholding the Constitution rests not only on the courts, but also on the legislature and
the executive as well.
For the Court to strike our their acts as unconstitutional, nothing less than clear and convincing evidence of such
breach of the Constitution must be shown.
Petitioners have not acquitted themselves of that duty. The petitions then must be dismissed for lack of merit.

PADILLA, J.: concurring:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.
Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987," challenged in these
petitions, states that:
Sec. 11. Prohibited Forms of Election Propaganda — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality
 who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign period.
Petitioners contend that the provision is void because it is violative of the freedoms of the press, speech and
expression as guaranteed by Article III, Section 4 of the Constitution.
But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate exercise of its
police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property,
(2) in order to foster the common good.
xxx xxx xxx
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable and individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare." Significantly, the Bill of rights itself does not
purport to be an absolute guaranty of individual rights and liberties. "Even liberty itself, the greatest
of all rights, is not unrestricted license to act according to one's will." It is subject to the far more
overriding demands and requirements of the greater number. 1
Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this
reason, it is co-extensive with the necessities of the case and the safeguards of public interest. 2
In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal access to
opportunities for public service. 3 Opportunity to hold a public office for public service, particularly elective public
offices must be equally accessible to qualified and deserving citizens. Corollary to this, the legislature also recognizes
the power of the Commission on Elections (COMELEC) to supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of media of communication or information granted by the government or any
subdivision, agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefore, for public information campaigns
and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible
elections." 4
In Pablito V. Sanidad vs. The Commission on Elections, 5 we held that the evil sought to be prevented by Art. IX-C,
Section 4 of the Constitution is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time.
In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act
as an equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a
myriad of campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign
would result in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print
space and air time, and yet, they may be equally qualified and deserving candidates. In Anacleto D. Badoy, Jr. vs.
Jaime N. Ferrer, et al., G.R. NO.
L-32546, October 17, 1970, 35 SCRA 285, this Court declared Section 12(F) of R.A. No. 6132 valid and
constitutional, recognizing that the purpose of the limitation, on the freedom of the candidate or his sympathizer to
spend his own money for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give
the poor candidates a fighting chance in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize,
if not approximate, equality of chances among the various candidates for elective public office.
Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space or air time for
campaign or other political purposes, access to print space and air time would be given equally to all candidates.
Nevertheless, as opined by the COMELEC, the means to gain access to said time and space would be unequal among
all candidates. Hence, there would be in the final analysis, inequality.
Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign purposes will open the
floodgates to corruption in public office because a winning candidate who overspends during the election period must
necessarily recover his campaign expenses by "hook or crook". Section 11 of R.A. No. 6646 would indirectly
constitute a positive and effective measure against corruption in public office.
Petitioners also contend that the challenged provision is "violative of the people's right to information particularly
about the conduct of public officials including the character and qualifications of candidates seeking public office."
I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision in expressing
its mandate — no sufficient fora to detect and decide for themselves who, among the candidates truly deserve their
votes. 6
Aside from Sec. 11 (b) of R.A. No. 6646 providing for Comelec space and Comelec time, Sections 9 and 10 of the
same law afford a candidate several venues by which the can fully exercise his freedom of expression, including
freedom of assembly. The electorate, in turn, are given opportunities to know the candidates and be informed of their
qualifications and platforms.
As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan private or
civic organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for
the same office may simultaneously and personally participate to present, explain, and/or debate on their campaign
platforms and programs and other like issues. Section 10, on the other hand, allows the candidates the use of the
designated common poster areas to post, display and exhibit election propaganda to announce or further their
candidacy; not to mentioned the right to hold political caucuses. conferences, meetings, rallies, parades, or other
assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for a candidate;
publishing or distributing campaign literature or materials designed to support the election of any candidate; and
directly or indirectly solicit votes, pledges or support for a candidate. 7
In short, the law in question (Sec. 11, Rep. Act No. 6646) has been enacted for a legitimate public purpose and the
means it employs to achieve such purpose are reasonable and even timely.
Based on all the foregoing consideration, I vote to sustain the validity and constitutionality of Section II of R.A. No.
6646.
GUTIERREZ, JR., J., dissenting:
I am saddened by the readiness with which Congress, Comelec, and the members of this Court are willing to sacrifice
not only that most precious clause of the Bill of Rights — freedom of speech and of the press — but also the right of
every citizen to be informed in every way possible about the qualifications and programs of those running for public
office.
Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the voters ignorant of who the candidates are
and what they stand for.
With elections fast approaching, the surveys show that almost half of the nation's voters are undecided as to the
Presidency. Certainly, they do not know who are running for the Senate.
The implementation of Section 11 (b) will result in gross inequality. A cabinet member, an incumbent official, a movie
star, a basketball player, or a conspicuous clown enjoys an unfair advantage over a candidate many times better
qualified but lesser known.
I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio, former NBI
Director; Estelito P. Mendoza, former Solicitor General and Governor; and Florangel Rosario Braid, member of the
Constitutional Commission and distinguished mass communication personality (to name only three) are also running
for the Senate. We owe it to the masses to open all forms of communication to them during this limited campaign
period. A candidate to whom columnists and radio-television commentators owe past favors or who share their
personal biases and convictions will get an undue amount of publicity. Those who incur the ire of opinion makers
cannot counteract negative reporting by buying his own newspaper space or airtime for the airing of his refutations.
Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to the task keeping
registration lists clean and had to repeat the exercise in critical areas. It should now husband its resources for its real
function — insuring the integrity of the voting process and safeguarding the true results of the elections.
Why Comelec should also supervise the publicity campaigns of almost 100,00 candidates running for 17,000 national
and local positions is beyond my poor power to comprehend.
I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the fresh,
imaginative, and personal appeal of advertisements espousing a cause or reaching a particular audience.
Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed
during the limited period of the election campaign when information is most needed. Moreover, the mere thought that
published materials are supervised by a government office is enough to turn the reader off. Only faithful followers
who already know for whom they are voting will bother to read the statements of their chosen candidate in the
Comelec corner of the newspapers.
The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited period. The
amount which a political party or candidate may spend is restricted. Added to the confines of the limited
period andrestricted expenses, the law now imposes a violation of the candidates' freedom of speech and the voters'
freedom to know.
I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant style. We should
not allow the basic freedom of expression to be sacrificed at the alter of infinitely lesser fears and concerns. Under the
clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to
be avoided must be so substantive as to justify a clamp over one's mouth or, a writing instrument to be stilled.
In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one short of the 2/3
majority needed to invalidate the law) deemed a less restrictive statute as unconstitutional. The four (4) Justices who
allowed the law to remain did so only because there were various safeguards and provisos. Section 11(b) of R.A. No.
6646 now removes one of those safeguards.
The then Justice Fred Ruiz Castro stated:
What of the social value and importance of the freedoms impaired by Section 50-B? The legislation
strikes at the most basic political right of the citizens in a republican system, which is the right
actively to participate in the establishment or administration of government. This right finds
expression in multiple forms but it certainly embraces that right to influence the shape of policy and
law directly by the use of ballot. It has been said so many times it scarcely needs to be said again, that
the realization of the democratic ideal of self-government depends upon an informed and committed
electorate. This can be accomplished only by allowing the fullest measure of freedom in the public
discussion of candidates
and the issues behind which they rally; to this end, all avenues of persuasion — speech, press,
assembly, organization — must be kept always open. It is in the context of the electoral process that
these fundamental rights secured by the Constitution assume the highest social importance. (at page
904; Emphasis supplied)
I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the choice of the nation's
leaders. I vote to declare the challenged legislation unconstitutional.
CRUZ, J., dissenting:
It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is
nothing more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty
in another obeisance to the police state, which we so despised during the days of martial law. I cannot share in the
excuses of the Court because I firmly believe that the highest function of authority is to insure liberty.
In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. May
quarrel is with the way the objective is being pursued for I find the method a most indefensible repression. It does
little good, I should think, to invoke the regularity authority of the Commission on Elections, for that power is not a
license to violate the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject
to the requirements of the police power which the ponencia seems to disdain.
It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the
challenged at is presumed to be valid in deference to the political departments. But not — and this represents a
singular exception — where the act is claimed to violate individual liberty, most importantly the freedom of
expression. In such a vital and exceptional case, as in the case now before us, I respectfully submit that the
presumption must be reversed in favor of the challenge.
Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above
all liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the
communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights
include the equally important freedom of the press, the right of assembly and petition, the right to information on
matters of public concern, the freedom of religion insofar as it affects the right to form associations as an instrument
for the ventilation of views bearing on the public welfare.
Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the
quaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the
hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most
cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that
is first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of
the press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972.
The reason for this precaution is that freedom
of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be
wielded by every citizen in the
land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart
to use it.
As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and
suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a
duty. From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full
deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to
be the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options,
let alone the latitude with which they are considered, can insure a far better choice than that made by the heedless
dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.
The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are
communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression
protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify
meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of
belligerence. The individual can convey his message in a poem or a novel or a tract or in a public speech or through a
moving picture or a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be
heeded, for a acceptability will depend on the quilty of his thoughts and of his persona, as well as the mood and
motivation of his audience. But whatever form he employs, he is entitled to the protection of the Constitution against
any attempt to muzzle his thoughts.
There is one especially significant way by which the citizen can express his views, and that is through the ballot. By
the votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the
various elective offices in the government, from the highest position of President of the Philippines to that of the
lowly member of the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his
intelligence (or lack of it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any
other candidate with no known distinction except the presumptuousness to seek elective office. Fortunately, there are
also other candidates deserving of the support of the circumspect and thinking citizens who will use their suffrages
conscientiously with only the public interest as their criterion and guide.
It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they
are allowed to campaign during the election period. Such campaign includes their personally visiting the voters in
house-to-house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-
serving leaflets extolling their virtues, giving away buttons and stickers and sample ballots and other compaign
materials, and holding caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to
do in the specified places and at the proper time provided only that they do not exceed the maximum limit of election
expenses prescribed by the Election Code at the rate of P1.50 for every voter currently registered in the constituency
where they filed their certificate of candidacy. 1
It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the
prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or
placards or posters or meetings to reach the electorate, incurring for this purposes a not inconsiderable amount of his
or his supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of
mass communications, even for free. Employment of these facilities is allowed only through the respondent
Commission on Elections, which is directed by the Election Code to procure newspaper space and radio and television
time to be distributed among the thousands of candidates vying throughout the land for the thousands of public offices
to be filled in the coming elections.
There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights,
the freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason
is the language of Article III, Section 4, of the Constitution, which provides without qualification:
No law shall be passed abridging the freedom of speech, of expression or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievances.
This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated
by law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better
policy is to assume that every right, including even the freedom of expression, must be exercised in accordance with
law and with due regard for the rights of others.
In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully
questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that
wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting
them to certain places and hours and under specified conditions, in the interest of peace and security, public
convenience, and in one case, even to prevent disturbance of the rites in a nearby church. 2Under the Public Assembly
Act, a permit from the mayor shall be necessary for the holding of a public meeting except where the gathering is to
be held in a private place or the campus of a government-owned or controlled educational institution or a freedom
park.
All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to
restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as
established by this Court in a long line of decisions. These requisites are:
1) the interests of the public generally as distinguished from those of a particular class require the exercise of the
police power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sough to be
achieved and not unduly oppressive upon individuals. 3 In simpler terms, the police measure, to be valid, must have a
lawful objective and a lawful method of achieving it.
The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent
disparity between the rich and the poor candidates by denying both of them access to the mass media and thus
preventing the former from enjoying an undue advantage over the latter. There is no question that this is a laudable
goal. Equality among the candidates in this regard should be assiduously pursued by the government if the aspirant
with limited resources is to have any chance at all against an opulent opponent who will not hesitate to use his wealth
to make up for his lack of competence.
But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may
be employed even if it may not be the best among the suggested options. In my own view, the method here applied
falls far short of the constitutional criterion. I believe that the necessary reasonable link between the means employed
and the purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.
The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the
limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that
while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on
other campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies
and meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited
mass media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot
be matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By
the same token, the rich candidates may visit more houses, send more letters, make more telephone appeals, distribute
more campaign materials, incurring for all these more expenses than the poor candidates can afford. But these
advantages are allowed by the law because they do not involve the use of mass media space and time.
And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is
raised for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would
be prohibited under the law although the rich candidates clearly has in this case no advantage over his adversary.
And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio
commentator who is apparently expressing his own opinion without financial consideration or inducement? This is not
prohibited by Section 11(b) simply because the endorsement does not appear to have been purchased by the
candidates or given to him for free.
The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of
candidates running all over the country for the offices of President of the Philippines, Vice-President, senators,
representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and
councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the
candidates would involve administrative work of unmanageable proportions, and the possibility as well of unequal
distribution, whether deliberate or unintentional, that might create more serious problems than the problem at hand.
It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to
resolve and its resolution may not be reviewed by the courts of justice. In the case of the police power, however, it is
required that there be a plausible nexus between the method employed and the purpose sought to be achieved, and
determination of this link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as
remarked by Justice Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that
what the law has done was valid to begin with. The trouble with the challenged law is that it hasexceeded what it
should have done, thereby becoming both inefficacious and arbitrary. As such, it must be slain.
But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In
a word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should
he be so rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility
of finding a man base enough to accept the office of censor and at the same time good enough to perform its duties.
Yet a pretender to that meddler is in our midst today, smugly brandishing the threat of this miserable law.
One could perhaps concede some permissible instances of censorship, as where private mail is screened during
wartime to prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the
national security or where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded
theater. But these exceptions merely make and bolster the rule that there should be no prior restraint upon a person's
right to express his ideas on any subject of public interest. The rule applies whether the censorship be in the form of
outright prohibition, as in the cases before us, or in more subtle forms like the imposition of tax upon periodicals
exceeding a prescribed maximum number of copies per issue 4 or allowing the circulation of books only if they are
judged to be fit for minors, thus reducing the reading tastes of adults to the level of juvenile morality. 5
I remind the Court of the doctrine announced in Bantam Books v.
Sullivan 6 that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against
its validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision
appears quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to
justify it in the name of social justice and clean elections cannot prevail over the self-evident fact that what we have
here is an illegal intent to suppress free speech by denying access to the mass media as the most convenient
instruments for the molding of public opinion. And it does not matter that the use of these facilities may involve
financial transactions, for the element of the commercial does not remove them from the protection of the
Constitution. 7
The law is no less oppressive on the candidates themselves who want and have the right to address the greatest
number of voters through the modern facilities of the press, radio and television. Equally injured are the ordinary
citizens, who are also entitled to be informed, through these mass media, of the qualifications and platforms of the
various candidates aspiring for public office, that they may be guided in the choice they must make when they cast
they ballots. 8
I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on the choice of our elective officials. It is truly alarming
that elections in a growing number of cases have become no more than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce.
The offer of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the elemental struggle for survival. That there are
millions of such persons can only compound this terrible situation. But what makes it especially revolting is the way these helpless persons are manipulated and imposed upon
and tantalized to surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy themselves into elective office —
these are the real saboteurs of democracy. These are the scoundrels who would stain the pristine ballot in their cynical scheme to usurp public office by falsifying the will of the
people. Section 11(b) aims to minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on
Elections relies heavily on Badoy v. Commission on Elections 9 to sustain the exercise of its authority to regulate and
supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the
present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No.
6132 providing as follows:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the areas in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all
the names of all other candidates in the district in which the candidate is running are also mentioned
with equal prominence.
The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo),
declared:
Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of
R.A. No. 6132 designed to maximize, if not approximate, equality of chances among the various
candidates in the same district, the said restriction on the freedom of expression appears too
insignificant to create any appreciable dent on the individual's liberty of expression.
What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the
candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What
Section 11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that
finds no justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass
media as a vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to
create any appreciable dent on the individual's liberty of expression."
What is in point is Sanidad v. Commission on Elections, 10 where this Court, through Mr. Justice Medialdea,
unanimously declared unconstitutional a regulation of the Commission on Elections providing as follows:
Sec. 19. Prohibition on columnists, commentators or announcer. — During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer
or personality shall use his column or radio or television time to campaign for or against the
plebiscite issues.
On the argument that the said persons could still express their views through the air time and newspaper space to be
allocated by the respondent, the Court declared:
Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not
absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against
the organic act because he may do so through the Comelec space and/or Comelec radio/television
time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of
expression, it is still restriction on his choice of the forum where he may express his view. No reason
was advanced by respondent to justify such abridgment. We hold that this form of regulation is
tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. (Emphasis
supplied)
This decision was promulgated without a single dissent, even from the incumbent members then who are now
sustaining Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in
this decision upholding the prohibition in question.
The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight
of the poor candidate thus:
Respondent Commission invites appreciation of the realities of present-day political campaigns. In
today's election competitions the success of one's candidacy rests to a great extent on the candidate's
ability to match the financial and material resources of the other. Where a candidate is given limitless
opportunity to take his campaign to areas of persuasion through the media, what is left of a winning
chance for a poor, if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act
 No. 6646, a wealthy candidate could block off an opponent of lesser means from the public view by
buying all print space in newspapers and air time in radio and television.
I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the
poor candidates vis-a-vis a wealthy opponent determined to win at all cost (which he can afford). However, for all its
anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the
Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.
The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or
could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not
be carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the
Constitution to supervise or regulate the operations of the mass media in connection with election matters, and we
may expect that it will use this power to prevent the monopoly it fears, which conceivably will consume all the funds
the candidate is allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as
long as he does not exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere
fact that the poor candidate can spend only a small fraction of that amount does not prevent the rich candidate from
spending all of it if he is so minded. This may be a heartless way of putting it, but that is in fact how the law should be
interpreted. The Election Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the
rich candidate shall spend only the same amount as the poor candidates can afford.
I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be
exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our
intelligence and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the
free society. As part of the larger picture, these impositions are only minor irritations that, placed in proper
perspective, should not justify the withdrawal of the great an inalienable liberty that is the bedrock of this Republic. It
is best to remember in this regard that freedom of expression exists not only for the though that agrees with us, to
paraphrase Justice Holmes, but a also for the thought that we abhor.
I submit that all the channels of communication should be kept open to insure the widest dissemination of information
bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the
officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is
important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for
public office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible
aberration of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume
of victory.
For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the
challenged law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the
Constitution that will ruthlessly bleed it white, and with it this most cherished of our freedoms.
PARAS, J., dissenting:
In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like efficiency,
rendered a decision which in the interest of accuracy and candidness, I would like to turn — the serious attack on our
freedom of expression. It is sad but I have no choice except to say that I dissent.
The freedom to advertise one's political candidacy in the various forms of media is clearly a significant part of our
freedom of expression and of our right of access to information. Freedom of expression in turn in includes among
other things, freedom of speech and freedom of the press. Restrict these freedoms without rhyme or reason, and you
violate the most valuable feature of the democratic way of life.
The majority says that the purpose of the political advertisement provision is to prevent those who have much money
from completely overwhelming those who have little. This is gross errors because should the campaign for votes be
carried out in other fora (for example, rallies and meetings) the rich candidate can always be at a great advantage over
his less fortunate opponent. And so the disparity feared will likewise appear in campaigns other than through media. It
is alleged also that the candidate with money can purchase for himself several full page advertisements, making his
poor opponents really poor in more ways than one. This is not realistic for the poor opponents may, for certain reasons
be given or favored with advertisements free of charge, and money will not be needed in this case. And yet under the
statute in question, even free or gratuitous advertisements in print, in radio or in television are included in the
prohibition. And then again, it is contended by the majority that a poor candidate can still make use of media by
consenting to interviews and news reports about this campaign, which interviews and reports are, according to the
majority still allowable. But then these interviews and news reports are still subtle advertisements and they can be had
if a candidate deliberately looks for media practitioners to inner view him or to write about him. If the majority is to
be consistent, these interviews and news reports should also be disallowed. A case in point is the senatorial candidate
who was interviewed on television last Tuesday (March 3, 1992). Portions of the interview follow:
Q In 19___, were you not the Secretary of _____________?
A Yes, I was.
Q When you were Secretary, did you not accomplish the following?
A (Interviewer then enumerated various accomplishments.)
Q Yes, I did.
There can be no doubt that this interview is disguised propaganda, and yet, if we follow the majority opinion, this is
allowable. Is this not
illogical — that is , if the ban stays?
And then again, if we were to consider the ban as constitutional, the "unknown" or "lesser known" candidates would
be at a distinct disadvantage. They will have to hold numerous rallies (spending oodles and oodles of money). And
only those who had previously received public exposure by dint of government service or by prominence in the
movies, in music, in sports, etc. will be the ones "recalled" by the voters. This will indeed be unfortunate for our
country.
It is true that freedom of speech and freedom of the press are not absolute, and that they have their own limitations.
But I do not see how these limitations can make the disputed prohibition valid and constitutional.
I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and eminently
unconstitutional.

G.R. No. L-27833 April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF

REPUBLIC ACT 4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
F. R. Cabigao in his own behalf as petitioner.
B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as amicus curiae.
FERNANDO, J.:
A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the
undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the
ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic
liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act.
Thus the question confronting this Court is one of transcendental significance.
It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy.
One is the freedom of belief and of expression availed of by an individual whether by himself alone or in association
with others of similar persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the
safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and the
limitation of the period of election campaign or partisan political activity, with the hope that the time-consuming
efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in violence, to
paraphrase the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark
opinion, 1 when we act in these matters we do so not on the assumption that to us is granted the requisite knowledge
to set matters right, but by virtue of the responsibility we cannot escape under the Constitution, one that history
authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is appropriately
invoked.
This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they
entitled Declaratory Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been
started in the of Court of First Instance but treated by this Court as one of prohibition in view of the seriousness and
the urgency of the constitutional issue raised. Petitioners challenged the validity of two new sections now included in
the Revised Election Code, under Republic Act No. 4880, which was approved and took effect on June 17, 1967,
prohibiting the too early nomination of candidates 2 and limiting the period of election campaign or partisan political
activity. 3
The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former
according to Act No. 4880 "refers to any person aspiring for or seeking an elective public office regarded of whether
or not said person has already filed his certificate of candidacy or has been nominated by any political party as its
candidate." "Election campaign" or "partisan political activity" refers to acts designed to have a candidate elected or
not or promote the candidacy of a person or persons to a public office." Then the acts were specified. There is a
proviso that simple expression of opinion and thoughts concerning the election shall not be considered as part of an
election campaign. There is the further proviso that nothing stated in the Act "shall be understood to prevent any
person from expressing his views on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila
and the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on
November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of
Manila and a political leader of his co-petitioner. It is their claim that "the enforcement of said Republic Act No. 4880
in question [would] prejudice [their] basic rights..., such as their freedom of speech, their freedom of assembly and
their right to form associations or societies for purpose not contrary to law, guaranteed under the Philippine
Constitution," and that therefore said act is unconstitutional.
After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of
assembly with a citation of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit
or intention of the law that would legally justify its passage and [enforcement] whether for reasons of public policy,
public order or morality, and that therefore the enactment of Republic Act [No.] 4880 under, the guise of regulation is
but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right
to form associations and societies for purposes not contrary to law, ..." There was the further allegation that the
nomination of a candidate and the fixing of period of election campaign are matters of political expediency and
convenience which only political parties can regulate or curtail by and among themselves through self-restraint or
mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police
power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners
meaningless and without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void,
respondent Commission on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the
validity of the act "for being mere conclusions of law, erroneous at that," and setting forth special affirmative
defenses, procedural and substantive character, would have this Court dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the
following effect: "At the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F.
Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios appeared for the respondent and they were given
a period of four days from today within which to submit, simultaneously,, their respective memorandum in lieu of oral
argument."
On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L-
27833 (Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having
deliberated on the issue of the constitutionality of Republic Act No. 4880; and a divergence of views having
developed among the Justices as to the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election
Code: considering the Constitutional provision that "no treaty or law may be declared unconstitutional without the
concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to defer
final voting on the issue until after the return of the Justices now on official leave."
The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo
Cabigao of the City of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on
American Supreme Court opinion that warn against curtailment in whatever guise or form of the cherished freedoms
of expression, of assemble and of association, all embraced in the First Amendment of the United States Constitution.
Respondent Commission on Elections was duly represented by Atty. Ramon Barrios.
Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did, arguing most impressively with a
persuasive exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral
process and with full recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights
of speech and press, of assembly and of association. He did justify its enactment however under the clear and present
danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and
degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not
only of efficiency in government but of lives as well.
The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to
the paragraphs above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities
to submit memoranda as amici curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar
Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included,
among them. They did file their respective memoranda with this Court and aided it in the consideration of the
constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is
their view that respondent Commission on Elections not being sought to be restrained from performing any specific
act, this suit cannot be characterized as other than a mere request for an advisory opinion. Such a view, from the
remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm, the original stand that
under the circumstances it could still rightfully be treated as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question.
Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong
reasons of public policy demand that [its] constitutionality ... be now resolved." 7 It may likewise be added that the
exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for
a ruling, the national elections being, barely six months away, reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the
enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter.
There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily,
a party who impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement. 8 Respondent cannot see such interest as being
possessed by petitioners. It may indicate the clarity of vision being dimmed, considering that one of the petitioners
was a candidate for an elective position. Even if such were the case, however, the objection is not necessarily fatal. In
this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an action to restrain the expenditure
of public funds through the enforcement of an invalid or unconstitutional legislative measure. 9
2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an
exercise of the police power of the state, designed to insure a free, orderly and honest election by regulating "conduct
which Congress has determined harmful if unstrained and carried for a long period before elections it necessarily
entails huge expenditures of funds on the part of the candidates, precipitates violence and even deaths, results in the
corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of the country are
sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to meet the constitutional questions
raised as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of association.
Would it were as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The
case confronts us again with the duty our system places on this Court to say where the individual's, freedom ends the
State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual. presumption
supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable
democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity and a sanction
not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what
standard governs the choice..."
Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of
respondent, militates against a stand minimizing the importance and significance of the alleged violation of individual
rights: "As so construed by us, it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev.
Gen. St., is on its face violative of any provision of either the state or Federal Constitution on the subject of free
speech or liberty of the press, nor that its operation is in any wise subversive of any one's constitutional
liberty." 11 Another leading State decision is much more emphatic: "Broad as the power of the legislature is with
respect to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections,
the legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation may not be
compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights must be squarely met. lawphi1.nêt

3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is
unconstitutional may prove illuminating. The primacy, the high estate accorded freedom of expression is of course a
fundamental postulate of our constitutional system. No law shall be passed abridging the freedom of speech or of the
press .... 13 What does it embrace? At the very least, free speech and free press may be identified with the liberty to
discuss publicly and truthfully any matter of public interest without censorship or punishment. 14 There is to be then
no previous restraint on the communication of views or subsequent liability whether in libel suits, 15prosecution for
sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and present danger of
substantive evil that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring
individual self-fulfillment, of attaining the truth, of assuring participation by the people in social including political
decision-making, and of maintaining the balance between stability and change. 19 The trend as reflected in Philippine
and American decisions is to recognize the broadcast scope and assure the widest latitude to this constitutional
guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited,
robust, and wide-open. 20 It is not going too far, according to another American decision, to view the function of free
speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of speech and of the press thus
means something more than the right to approve existing political beliefs or economic arrangements, to lend support
to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So
atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not
conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the
thought that agrees with us. 22
So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a
whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of new society in
which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational
and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive,
exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration,
skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society
that is tyrannical, conformist, irrational and stagnant." 23
From the language of the specified constitutional provision, it would appear that the right is not susceptible of any
limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex
society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to
insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other
societal values that press for recognition. How is it to be limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible
restriction. Thus: "These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the evil consequence of the comment or utterance must be extremely
serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented." It has the advantage of establishing according to the above
decision "a definite rule in constitutional law. It provides the criterion as to what words may be public established."
The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "If the
words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is
not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient
that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to
incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of
the utterance be to bring about the substantive evil which the legislative body seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did
its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?" The
choice of this Court was manifest and indisputable. It adopted the clear and present danger test. As a matter of fact, in
an earlier decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear and present danger
doctrine.
Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders
thus: ... the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there
be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the
remedy to be applied is more speech, not enforced silence." 26 For him the apprehended evil must be "relatively
serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the
substantive evil be "extremely serious." 27 Only thus may there be a realization of the ideal envisioned by Cardozo:
"There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme
borders where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question
in every case is whether the words used in such circumstances and of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree." 29
This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the
state has a right to prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also
present. The term clear seems to point to a causal connection with the danger of the substantially evil arising from the
utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate danger.
The danger must not only be probable but very likely inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of
speech or of the press. It likewise extends the same protection to the right of the people peaceably to assemble. As was
pointed out by Justice Malcolm in the case of United States v. Bustos, 30 this right is a necessary consequence of our
republican institution and complements the right of free speech. Assembly means a right on the part of citizens to
meet peaceably for consultation in respect to public affairs. From the same Bustos opinion: "Public policy, the welfare
of society and orderly administration of government have demanded protection for public opinion." To paraphrase the
opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or coincidence
that the rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people
peaceably to assemble and to petition the government for redress of grievances. All these rights while not identical are
inseparable. They are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights
wherein they are contained, applies to all. As emphatically put in the leading case of United States v.
Cruikshank, 32 "the very idea of a government, republican in form, implies a right on the part of its citizens to meet
peaceably for consultation in respect to public affairs and to petition for redress of grievances." As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent.
5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or
without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member
of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled.
Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an indigenous
cast. It can trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is
primarily the first amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly
and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to
contribute to our Free Society." 34 He adopted the view of De Tocqueville on the importance and the significance of
the freedom to associate. Thus: "The most natural privilege of man, next to the right of acting for himself, is that of
combining his exertions with those of his fellow creatures and of acting in common with them. The right of
association therefore appears to me almost inalienable in its nature as the right of personal liberty. No legislator can
attack it without impairing the foundation of society." 35
There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it
would be a barren existence if he could not freely associate with others of kindred persuasion or of congenial frame of
mind. As a matter of fact, the more common form of associations may be likely to be fraternal, cultural, social or
religious. Thereby, for almost everybody, save for those exceptional few who glory in aloofness and isolation life is
enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association should be on its political significance. If such a right
were non-existent then the likelihood of a one-party government is more than a possibility. Authoritarianism may
become unavoidable. Political opposition will simply cease to exist; minority groups may be outlawed, constitutional
democracy as intended by the Constitution may well become a thing of the past.
Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority
as the will of the electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost
scope should be afforded this freedom of association.
It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so
for its assurance that the wishes of any group to oppose whatever for the moment is the party in power and with the
help of the electorate to set up its own program of government would not be nullified or frustrated. To quote from
Douglas anew: "Justice Frankfurter thought that political and academic affiliations have a preferred position under the
due process version of the First Amendment. But the associational rights protected by the First Amendment are in my
view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and
in religion. In my view, government can neither legislate with respect to nor probe the intimacies of political, spiritual,
or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that exist in
this country." 36
Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right
to form associations or societies when their purposes are "contrary to law". How should the limitation "for purposes
not contrary to law" be interpreted? It is submitted that it is another way of expressing the clear and present danger
rule for unless an association or society could be shown to create an imminent danger to public safety, there is no
justification for abridging the right to form association societies.37 As was so aptly stated: "There is no other course
consistent with the Free Society envisioned by the First Amendment. For the views a citizen entertains, the beliefs he
harbors, the utterances he makes, the ideology he embraces, and the people he associates with are no concern to
government — until and unless he moves into action. That article of faith marks indeed the main difference between
the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With the above
principles in mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early
nomination of candidates and the limitation found therein on the period of election campaign or partisan political
activity alleged by petitioners to offend against the rights of free speech, free press, freedom of assembly and freedom
of association. In effect what are asked to do is to declare the act void on its face evidence having been introduced as
to its actual operation. There is respectable authority for the court having the power to so act. Such fundamental
liberties are accorded so high a place in our constitutional scheme that any alleged infringement manifest in the
wording of statute cannot be allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration
that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of
happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to
close one's eyes to the realities of the situation. Nor can we ignore the express legislative purpose apparent in the
proviso "that simple expressions of opinion and thoughts concerning the election shall not be considered as part of an
election campaign," and in the other proviso "that nothing herein stated shall be understood to prevent any person
from expressing his views on current political problems or issues, or from mentioning the names of the candidates for
public office whom he supports." Such limitations qualify the entire provision restricting the period of an election
campaign or partisan political activity.
The prohibition of too early nomination of candidates presents a question that is not too formidable in character.
According to the act: "It shall be unlawful for any political party political committee, or political group to nominate
candidates for any elective public officio voted for at large earlier than one hundred and fifty days immediately
preceding an election, and for any other elective public, office earlier than ninety days immediately preceding an
election." 40
The right of association is affected. Political parties have less freedom as to the time during which they may nominate
candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate
activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can
do so, but not for such a purpose. We sustain in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny.
According to Republic Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any
group or association of persons whether or not a political party or political committee, to engage in an election
campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an
election involving a public office voted for at large and ninety days immediately preceding an election for any other
elective public office. The term 'candidate' refers to any person aspiring for or seeking an elective public office,
regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any
political party as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to
have a candidate elected or not or promote the candidacy of a person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken
down. What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is
valid, being a legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That cannot
be done; such an undesirable eventuality, this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having
inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of
ideas may be the loser.41 Where the statutory provision then operates to inhibit the exercise of individual freedom
affirmatively protected by the Constitution, the imputation of vagueness sufficient to invalidate the statute is
inescapable. 42 The language of Justice Douglas, both appropriate and vigorous, comes to mind: "Words which are
vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula." 43Nor is the reason
difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our society. The
threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." 44
7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the
constitutional rights of free speech and press, of assembly, and of association cut deeply, into their substance. This on
the one hand.
On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There
can be under the circumstances then no outright condemnation of the statute. It could not be said to be unwarranted,
much less arbitrary. There is need for refraining from the outright assumption that the constitutional infirmity is
apparent from a mere reading thereof.
For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what
ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures
weighs heavily with the members of the Court, though in varying degrees, in the appraisal of the aforesaid restrictions
to which such precious freedoms are subjected. They are not unaware of the clear and present danger that calls for
measures that may bear heavily on the exercise of the cherished rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such
constitutional rights. The clear and present danger doctrine rightly viewed requires that not only should there be
an occasion for the imposition of such restrictions but also that they be limited in scope.
There are still constitutional questions of a serious character then to be faced. The practices which the act identifies
with "election campaign" or "partisan political activity" must be such that they are free from the taint of being
violative of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from
constitutional objection of vagueness is the enumeration of the acts deemed included in the terms "election campaign"
or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding
political conventions, caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a candidate or party;(c) making
speeches, announcements or commentaries or holding interviews for or against the election or any party or candidate
for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting
votes and/or undertaking any campaign or propaganda for or against any party; (f) giving, soliciting, or receiving
contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the objection that may
be raised as to vagueness has been minimized, if not totally set at rest. 46
8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional
infringement exists insofar as the formation of organization, associations, clubs, committees, or other groups of
persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a
candidate or party is restricted 47 and that the prohibition against giving, soliciting, or receiving contribution for
election purposes, either directly or indirectly, is equally free from constitutional infirmity. 48
The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings,
rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or
propaganda or both for or against a candidate or party, 49 leaving untouched all other legitimate exercise of such poses
a more difficult question. Nevertheless, after a thorough consideration, and with the same Justices entertaining the
opposite conviction, we reject the contention that it should be annulled. Candor compels the admission that the writer
of this opinion suffers from the gravest doubts. For him, such statutory prescription could very well be within the
outermost limits of validity, beyond which lies the abyss of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the
judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical,
because of their collision with the preferred right of freedom of expression. From the outset, such provisions did
occasion divergence of views among the members of the Court. Originally only a minority was for their being
adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the curtailment to which
freedom of expression may be subjected is not foreclosed by the recognition of the existence of a clear and present
danger of a substantive evil, the debasement of the electoral process.
The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda
whether directly or indirectly, by an individual, 51 the making of speeches, announcements or commentaries or
holding interview for or against the election for any party or candidate for public office, 52 or the publication or
distribution of campaign literature or materials, 53 suffer from the corrosion of invalidity. It lacks however one more
affirmative vote to call for a declaration of unconstitutionality.
This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory
condition arising from the too-early nomination of candidates and the necessarily prolonged, political campaigns. The
direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed many
a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that violence and even
death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for
dishonesty and corruption, with the right to suffrage being bartered, was further magnified.
Under the police power then, with its concern for the general welfare and with the commendable aim of safe-guarding
the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is
understandable for Congress to believe that without the limitations thus set forth in the challenged legislation, the
laudable purpose of Republic Act No. 4880 would be frustrated and nullified. Whatever persuasive force such
approach may command failed to elicit the assent of a majority of the Court. This is not to say that the conclusion
reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is devoid
of merit.
It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding
of interviews for or against the election of any party or candidate for public office and the prohibition of the
publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or
indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged statute prohibits what under the Constitution
cannot by any law be abridged.
More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and
present danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an
adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices
prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear
and present danger doctrine.
In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards
in a legislation of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court
could discern "an over breadth that makes possible oppressive or capricious application" 55 of the statutory provisions,
the line dividing the valid from the constitutionally infirm has been crossed. Such provisions offend the constitutional
principle that "a governmental purpose constitutionally subject to control or prevent activities state regulation may not
be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 56
It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly
achieved. 57 For precision of regulation is the touchstone in an area so closely related to our most precious
freedoms. 58
Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as
unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the
fundamental liberties associated with freedom of the mind. 59
Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of
nullity insofar as the challenged sections are concerned is called for. It cannot accept the conclusion that the
limitations thus imposed on freedom of expression vitiated by their latitudinarian scope, for Congress was not at all
insensible to the problem that an all-encompassing coverage of the practices sought to be restrained would seriously
pose.
Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Tañada,
appearing before us as amicus curiae. He did clearly explain that such provisions were deemed by the legislative body
to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the
actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as
violence that of late has invariably marred election campaigns and partisan political activities in this country. He did
invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady
requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by
it, unless clearly repugnant to fundamental rights, be ignored or disregarded.
More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of
the undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly and
of association. It is thus provided: "That simple expressions or opinion and thoughts concerning the election shall not
be considered as part of an election campaign [and that nothing in the Act] shall be understood to prevent any person
from expressing his views on current political problems or issues, or from mentioning the names of the candidates for
public office whom he supports. 60 If properly implemented then, as it ought to, the barrier to free, expression
becomes minimal and far from unwarranted.
For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting
edge may be ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as far
as freedom of the mind and of association are concerned. It is its opinion that it would be premature to say the least,
for a judgment of nullity of any provision found in Republic Act No. 4880. The need for adjudication arises only if in
the implementation of the Act, there is in fact an unconstitutional application of its provisions. Nor are we called
upon, under this approach, to anticipate each and every problem that may arise. It is time enough to consider it when
there is in fact an actual, concrete case that requires an exercise of judicial power.
9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the
electoral process. There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to
impose the necessary restrictions to what otherwise would be liberties traditionally accorded the widest scope and the
utmost deference, freedom of speech and of the press, of assembly, and of association. We cannot, however, be
recreant to the trust reposed on us; we are called upon to safeguard individual rights. In the language of Justice Laurel:
"This Court is perhaps the last bulwark of constitutional government. It shall not obstruct the popular will as
manifested through proper organs... But, in the same way that it cannot renounce the life breathed into it by the
Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility
incumbent on the judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice
of means to cure an admitted evil, that the legislative judgment arrived at, with its possible curtailment of the
preferred freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all
due reject to a coordinate branch, unable to extend their approval to the aforesaid specific provisions of one of the
sections of the challenged statute. The necessary two-third vote, however, not being obtained, there is no occasion for
the power to annul statutes to come into play.
Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.
WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in the result.

Separate Opinions

SANCHEZ, J., concurring and dissenting:

Petitioners in the present case aim at striking down as violative of constitutional guarantees Republic Act 4880, the
principal features of which are contained in its Sections 1, inserting Sections 50-A and 50-B between Sections, 50 and
51 of the Revised Election Code, reproduced herein as follows:1
SECTION 1. Republic Act Numbered One hundred and eighty, as amended, is hereby further amended by
inserting new sections to be known as Sections 50-A and 50-B, between Sections 50 and 51 thereof, which
shall read as follows:
SEC. 50-A. Prohibition of too early nomination of Candidates. — It shall be unlawful for any political party,
Political Committee, or Political group to nominate candidates for any elective public office voted for a large
earlier than one hundred and fifty days immediately preceding an election, and for any other elective public
office earlier than ninety days immediately preceding an election.
SEC 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. — It is unlawful
for any person whether or not a voter or candidate, or for any group or association of persons, whether or not
a political party or political committee, to engage in an election campaign or partisan political activity except
during the period of one hundred twenty days immediately preceding an election for any public office.
The term "Candidate" refers to any person aspiring for or seeking an elective public office, regardless of
whether or not said person has already filed his certificate of candidacy or has been nominated by any
political party as its candidate.
The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or
candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or
against any candidate or party;
(c) Making speeches, announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office;
(d) Publishing or distribution campaign literature or materials;
(e) Directly or indirectly soliciting vote and/or undertaking any campaign or propaganda for or
against any candidate or party;
(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or
indirectly: Provided, That simple expressions or 2 opinion and thoughts concerning the election shall not be considered as part
 of an election campaign: Provided, further, That nothing herein stated shall be understood to prevent any person from expressing his views on current
political problems or issues, or from mentioning the names of the candidates for public office whom he supports.

Appropriately to be stated right at the start is that violation of the above provisions is considered a serious election
offense. The penalty is "imprisonment of not less than one (1) year and one (1) day but not more than five (5) years"
with accompanying "disqualification to hold a public office and deprivation of the right of suffrage for not less than
one (1) year but more than nine (9) years" and payment of costs. 3
1. The issue of constitutionality of R.A. 4880 again brings to the fore the eternally-warring concepts of individual
liberty and state authority.
Invalidity is pressed on the ground that the statute violates the rights of free speech and press, of peaceable assembly,
and of association. 4 This Court is asked to rule that in the context of the ill-effects to be cured, the legislative remedy
adopted, vis-a-vis the rights affected, does not meet what petitioners claim to be the rational basis test; that, on the
contrary, the relief prescribed would more likely produce the very evils sought to be prevented. This necessitates a
circumspect discussion of the issue.
In proceeding the working assumption is that individual liberty is not absolute. Neither is state authority, inspite of its
sweep, limitable. Fixed formulas and ready-made rules that seek to balance these two concepts could well redeem one
from the unnerving task of deciding which ought to prevail.
It is at this point that we call to mind the principle that the relation between remedy and evil should be of such
proximity that unless prohibited, conduct affecting these rights would create a "clear and present danger that will
bring about substantive evils that Congress has a right to prevent."5
Withal doctrines which conceal behind the cloak of authoritative origin a tendency to muffle the demands of society,
must pass the glaring light of contemporaneity. For, in the consideration of questions on constitutionality, one should
remain receptive to the implication of John Marshall's resonant words that "it is a constitution we are expounding."6
Such authority here manifests itself in legislation intended as an answer to the strong public sentiment that politics is
growing into a way of life, that political campaigns are becoming longer and more bitter. It is a result of legislative
Appraisal that protracted election campaign is the root of undesirable conditions. Bitter rivalries precipitate violence
and deaths. Huge expenditures of funds give deserving but poor candidates slim chances of winning. They constitute
an inducement to graft to winning candidates already in office in order to recoup campaign expenses. Handouts doled
out by and expected from candidates corrupt the electorate. Official duties and affairs of state are neglected by
incumbent officials desiring to run for reelection. The life and health of candidates and their followers are endangered.
People's energies are dissipated in political bickerings and long drawn-out campaigns. 7 Indeed, a drawn-out political
campaign taxes the reservoir of patience and undermines respect of the electorate for democratic processes. Sustained
and bilious political contests eat away even the veneer of civility among candidates and their followers and transplant
brute force into the arena.
Such legislative appraisal, such ill-effects, then must constitute a principal lever by which one concept could win
mastery over the other.
R.A. 4880 is a police power legislation. It was enacted by virtue of the inherent power of Congress to legislate on
matters affecting public interest and welfare, 8 as well as in pursuance of the constitutional policy of insuring a free,
honest and orderly election. 9 Basically, the undefined scope of that power extends as far as the frontiers of public
interest would advance. Fittingly, legislative determination of the breadth of public interest should Command respect.
For, Congress is the constitutional body vested with the power to enact laws. Its representative composition induces
judgment culled from the diverse regions of the country. Normally, this should assure that a piece of police legislation
is a reflection of what public interest contemporaneously encompasses.
2. It is, however, postulated that the right of peaceable assembly is violated by the prohibition on holding political
assemblies for a period lasting more than one year; that the right to form associations is contravened by forbidding,
for the same period, the formation of political groups; that, finally, freedom of speech and of the press is unduly
restricted by a legislative fiat against speeches, announcements, commentaries or interviews favorable or unfavorable
to the election of any party or candidate, publishing or distributing campaign literature or materials, and directly or
indirectly soliciting votes and/or under-taking any campaign or propaganda for or against any candidate or party,
except during a number of days immediately preceding the election.
What has repeatedly been urged is the view that the underlying historic importance of the foregoing specified rights in
democratic societies requires that the posture of defense against their invasion be firmer and more uncompromising
than what may be exhibited under the general due process protection. 10 The absolute terms by which these specific
rights are recognized in the Constitution justifies this conclusion. 11
And yet, sight should not be lost of the fact that Congress has made a determination that certain specific evils are
traceable directly to protracted election, activities. Congress has found a solution to minimize, if not prevent, those
evils by limiting the period of engaging in such activities. The proponents of validity would rely upon experience to
deduce the connection between the cited evils and prolonged political campaign. By limiting the period of campaign,
so they say, it is expected that the undesirable effects will be wiped out, at least, relieved to a substantial degree.
This, of course, is largely an assumption. Congress we must stress, has put up an untried measure to solve the
problematic situation. Deduction then is the only avenue open: for Congress, to determine the necessity for the law;
for the Court, its validity. The possibility of its inefficaciousness is not remote. But so long as a remedy adopted by
Congress, as far as can logically be assumed, measures up to the standard of validity, it stands.
We give our imprimatur to Section 50-A. We may not tag as unconstitutional 50-B, and its subsections (a), (b) and (f).
We fear no serious evil with their enforcement. They do not offend the constitutionally protected speech and press
freedoms, and rights of peaceable assembly and association. The latter must yield. The proscriptions set forth in all of
them are clear-cut, not open to reasonable doubt, nor easily susceptible to unreasonable interpretation. Public interest
and welfare authorize their incorporation into the statute books.
3. To this writer, however, the center of controversy is to be found in subsections (c), (d) and (e) of Section 50-B.
Those who espouse validity assert that no undue restriction results because, by jurisprudence, solicitation and
campaign are outside the ambit of protected speech. 12 But this rule, it would seem to us, has relevance only to
commercial solicitation and campaign. There is no point here in delving into the desirability of equating, in social
importance, political campaign with advertisements of gadgets and other commercial propaganda or
solicitation. 13For, the statute under consideration goes well beyond matters commonly regarded as solicitation and
campaign. Suffice it to say that jurisprudence tends to incline liberally towards freedom of expression in any form
when placed in juxtaposition with the regulatory power of the State. 14
Legislative history of the statute now before us indicates that what Congress intends to regulate are partisan activities
and active campaigning.
Campaigning, as defined by the sponsor of Senate Bill 209 in the Senate, is a "series of operations." This, evidently,
must have been adopted from the dictionary meaning of campaign: a connected series of operations to bring about
some desired result.
The term "partisan political activity" has somehow acquired a more or less definite signification. It is not a new
feature in Philippine political law. It has been regulated to stem dangers to specific state interests. The Constitution
itself contains an injunction against civil service officers and employees from engaging directly or indirectly in
partisan political activity or taking part in any election except to vote. 15 The civil service law 16 and the Revised
Election Code, 17 echo this absolute prohibition which is obviously aimed at the possible neglect of public service and
its prostitution with partisan interests. The following are cited in the Civil Service Rules as examples of partisan
political activity: candidacy for elective office; being a delegate to any political convention or member of any political
committee or officer of any political club or other similar political organization; making speeches, canvassing or
soliciting votes or political support in the interest of any party or candidate; soliciting or receiving contributions for
political purposes either directly or indirectly; and becoming prominently identified with the success or failure of any
candidate or candidates for election to public office. 18
In the context in which the terms "partisan political activity" and "election campaign" are taken together with the
statutory purpose, the following from Justice Holmes would be particularly instructive: "Wherever the law draws a
line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no
one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law
to make him take the risk." 19
4. Perhaps if the phrases "election campaign" or "partisan political activity" were left to be explained by the general
terms of the law as solely referring "to acts designed to have a candidate elected or not or promote the candidacy of a
person or persons to a public office", it would be difficult to say that such prohibition is offensive to speech or press
freedoms. But then the law itself sought to expand its meaning to include an area of prohibited acts relating to
candidates and political parties, wider than an ordinary person would otherwise define them.
Specifically, discussion — oral or printed — is included among the prohibited conduct when done in the following
manner (Section 50- B)
(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any
party or candidate for public office:
(d) Publishing or distributing campaign literature or materials;
(e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any
candidate or party.
Defined only as lawful discussion is the following:
Provided. That simple expressions of opinion and thoughts concerning the election shall not be considered as
part of an election campaign: Provided, further, That nothing herein stated shall be understood to prevent any
person from expressing his views on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports.
The conduct involved in the discussion as to make it illegal is not clearly defined at all. The implication then is that
what is prohibited is discussion which in the view of another may mean political campaign or partisan political
activity. The speaker or writer becomes captive under the vigilant but whimsical senses of each listener or reader. His
words acquire varying shades of forcefullness, persuasion and meaning to suit the convenience of those interpreting
them. A position becomes solicitation. As admonition becomes a campaign or propaganda.
As worded in R.A. 4880, prohibited discussion could cover the entire spectrum of expression relating to can
candidates and political parties. No discussion is safe. Every political discussion becomes suspect. No one can draw
an indisputable dividing line between lawful and unlawful discussion. More so that statutory restraint falls upon any
person whether or not a voter or candidate.
Candidacy is not enjoined during the proscriptive period. A person may thus make public his intention to run for
public office. So may an incumbent official profess his desire to run for reelection. The law therefore leaves open,
especially to the electorate, the occasion if the temptation for making statements relating to a candidacy .The natural
course is to comment upon or to discuss the merits of a candidate, his disqualifications, his opponents for public
office, his accomplishments, his official or private conduct. For, it can hardly be denied that candidacy for public
office is a matter of great public concern and interest.
Yet, this normal reaction to discuss or comment is muzzled by an unqualified prohibition on announcements or
commentaries or interviews for or against the election of any party or candidate, on publishing campaign literature,
and on indirect solicitation and campaign or propaganda for or against any party or candidate. Even incumbent
officials are stopped. Every appearance before the public, every solicitous act for the public welfare may easily
become tainted.
5. Nor does the proviso offer any corresponding protection against uncertainty. "Simple expressions of opinion and
thoughts concerning the election" and expression of "views on current political problems or issues" leave the reader to
conjecture, to guesswork, upon the extent of protection offered, be it as to the nature of the utterance it simple
expressions of opinion and thoughts") or the subject of the utterance ("current political problems or issues"). The line
drawn to distinguish unauthorized "political activity" or "election campaign" — specifically, a speech designed to
promote the candidacy of a person from a simple expression of opinion on current political problems is so tenuous as
to be indistinguishable. 20 If we are to paraphrase Mr. Justice Holmes, then the thought should run something like this:
The only difference between expression of an opinion and the endorsement of a candidate is "the speaker's enthusiasm
for the result." 21
Only one area is certain. A person may only mention the candidate whom he supports. Beyond mentioning the name,
it is no longer safe. But is it not unduly constricting the from of rational-minded-persons to back up their statements of
support with reasons?
The peculiarity of discussion, be it oral or printed, is that it carries with it varying degrees of "enthusiasm and
inclination to persuade", 22 depending upon the listener or reader. It falls short of a partisan political activity when it is
devoid of partisan interest in the sense that it is not made in the interest of a candidate or party. This is the only
criterion for validity. But who is to decide this? And how? The law does not even require that there be an operation or
a series of operations in order to measure up to an election campaign as it is commonly understood. In this way, the
law may well become an instrument of harassment. Worse, it could lull the potential had defendant into a false sense
of security. It then becomes a dragnet that may trap anyone who attempts to express a simple opinion on political
issues.
6. More than this, the threat of punishment will continually hound a speaker who expounds his views on political
issues. Because of its punitive provisions, the statute surely tends to restrict what one might, say his utterance be
misunderstood as "designed to promote the candidacy of a person." A person would be kept guessing at the precise
limits of the permissible "simple expression". To play safe, he would be compelled to put reins on his words for fear
that they may stray beyond the protected area of "simple expression". The offshoot could only be a continuous and
pervasive restraint on all forms of discussion which might time within the purview of the statute. This thought is not
new. It is underscibed in NAACP vs. Button, 371 U.S. 415, 9 L. ed, 405, in language expressive, thus. —
The objectionable quality of vagueness and over breadth does not depend upon absence of fair notice to a
criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in
the area of first amendment freedoms, the existence of a penal statute susceptible of sweeping and improper
application.... These freedoms are delicate and vulnerable as well as supremely precious in our society. The
threat of sanctions way deter their exercise almost as the actual application of the sanctions. Because the first
amendment freedoms need breathing space to survive, government may regulate in the area only With narrow
specificity.23
It is thus in the self-imposed restraint that works in the minds of ordinary, law-abiding citizens that a vague statute
becomes unjust.
Because of the indefiniteness created in subsections (c), (d) and (e) of Section 50-B, they readily lend themselves to
harsh application. Vagueness of the law enforcers. Arbitrary enforcement of the letter of the law by an expansive
definition of election campaign or partisan political activity, should not be branded as improbable. For, political
rivalries spawn persecution. The law then becomes an unwitting tool. Discussion may be given a prima facie label as
against the harassed. This is not altogether remote. To be sure, harassment and persecution are not unknown to the
unscrupulous.
7. Those who favor validity find comfort in the theory that it is better for the meantime to leave the statute well
enough alone. They say that it is preferable that courts of justice be allowed to hammer out the contours of the statute
case by case. This may not, however, be entirely acceptable. To forego the question of constitutionality for now and
take risks may not be the wiser move. As well advocated elsewhere. 24 a series of court prosecutions will a statute,
still leaving uncertain other portion thereof. And then, in deciding whether or statute can be salvaged, one must not
hedge and assume that when it is enforced in the be resolved in favor of upholding free speech and press.
More important, there is the heavy penalty prescribed. A candidate, or any person for that matter, can unreasonably be
saddled by court suits. Even if the accused were later to be declared innocent, thoroughly unnecessary is the burden of
lawyers' fees, bail bonds and other expenses, not to say of energy to be consumed, effort to be expended, time to be
spent, and the anxieties attendant in litigation.
It cannot really be said that the courage to speak out, barring all risks, is an ordinary human trait. Timorous men
should not grow in number. And yet, it would appear that this is the effect of the enforcement of the law. The constant
guide should be the warning of Justice Brandeis "that it is hazardous to discourage thought, hope and imagination; that
fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed remedies." 25
As we analyze the import of the law, we come to the conclusion that subsections (c), (d) and (e) of Section 50-B
inserted into the Revised Election Code by Republic Act 4880, heretofore transcribed, run smack against the
constitutional guarantees of freedom of speech and of the press. Hence, this concurrence and dissent.
CASTRO, J., dissenting:
Presented for consideration and decision is the constitutionality of Section 50-A and 50-B of the Revised Election
Code, which were inserted as amendatory provisions by Republic Act 4880. 1 These sections read in full as follows:
SEC. 50-A. Prohibition of too early nomination of Candidates. — It shall be unlawful for any political party,
Political Committee or Political group to nominate candidates for any elective public office voted for at large
earlier than one hundred and fifty days immediately preceding an election, and for any other elective public
office earlier than ninety days immediately preceding an election.
 SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. — It is unlawful
for any person whether or not a voter or candidate, or for any group or association of persons, whether or not
a political party or political committee, to engage in an election campaign or partisan political activity except
during the period of one hundred twenty days immediately preceding an election involving a public office
voted for at large and ninety days immediately preceding an election for any other elective public office.
The term "Candidate" refers to any person aspiring for or seeking an elective public officer, regardless of
whether or not said has already filed his certificate of candidacy or has been nominated by any political
candidate.
The term "Election Campaign" or Partisan Political Activity refers to the acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or
candidate;
(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or against a candidate or party;
(c) Making speeches, announcements or commentaries or holding interviews for or against the
election of any party or candidate for public office;
(d) Publishing or distributing campaign literature or materials;
(e) Directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or
against any candidate or party;
(f) Giving, soliciting, or receiving contributions for election campaign purposes, either directly or
indirectly. Provided, That simple expressions of opinion and thoughts concerning the election shall
not be considered as part of an election campaign; Provided, further. That nothing herein stated shall
understood to prevent any person from expressing his views on current political problems or issues,
or from mentioning the names of the candidates for public office who he supports.
Violation of these two section are classified as "serious election offenses" under Section 183 of the Revised Election
Code, as amended R.A 4880, punishable with "imprisonment of not less than one year and one day but not more than
five years" and "disqualification to hold a public office and deprivation of the right of suffrage for not less than one
year but not more than nine years." 2
The basic purpose of R.A. 4880 is easily discenible. Congress felt the need of curtailing excessive and extravagant
partisan political activities, especially during an election year, and, to this end, sought to impose limitations upon the
times during which such activities may be lawfully pursued. The legislative concern over excessive political activities
was expressed in the following terms in the explanatory note of Senate Bill 209, which finally came R.A. 4880:
There is nothing basically wrong in engaging in an election campaign. Election campaign is indispensable
part of election just as election is one of the most important fundamental requirements of popular
government.
It is also during election campaign that the stands of prospective political parties on vital national and local
issues are made known to the public, thereby guiding the enfranchised citizenry in the proper and appropriate
expression of its sovereign will.
Past experience, however, has brought to light some very disturbing consequences of protracted election
campaigns. Because of prolonged exposure of both candidates and the people to political tension, what starts
out at first as gentlemanly competition ends up into bitter rivalries precipitating violence and even deaths.
Prolonged election campaigns necessarily entail huge expenditures of funds on the part of the candidates.
Now, no matter how deserving and worthy he is, a poor man has a very slim chance of winning an election.
Prolonged election campaigns indeed carry with it not only the specter of violence and death, not only the
objectionable dominion of the rich in the political arena, but also the corruption of our electorate. We must
adapt our democratic processes to the needs of the times.
I
The prohibitions introduced by R.A. 4880 purport to reach two types of activities, namely, (a) early nomination of
candidates for elective public offices (Sec. 50-A), and (b) early election campaigns or partisan political activities (Sec.
50-B). The first prohibition is specifically directed against political parties, committees, and groups; the second
prohibition is much more comprehensive in its intended reach, for it operates upon "any person whether or not a voter
or a candidate" and "any group or association of persons whether or not a political party or political committee."
Section 50-B brings within the ambit of its proscription a wide range of activities. The catalogue of activity ties
covered by the prohibition against early election campaigning embraces two distinguishable types of acts; (a) giving,
soliciting or receiving contributions for election campaign purposes, either directly or indirectly; and (b) directly or
indirectly soliciting votes or under-taking any campaign or propaganda for or against any candidate or party, whether
by means of speech, publication, formation of organizations, or by holding conventions, caucuses, meetings or other
similar assemblies. The term "candidate" is itself broadly defined to include "any person aspiring for or seeking an
elective public office," whether or not such person has been formally nominated.
The sweeping character of the prohibitions in Section 50-B is sought to be mitigated and delimited by the provisos
exempting from their operation (a) "simple expressions of opinion and thoughts concerning the election," (b)
expression of "views on current political problems or issues," and (c) "mentioning the names of the candidates for
public office" whom one supports.
Before assaying the constitutional quality of Sections 50-A and 50-B, it is relevant to point out that these two section
are not wholly consistent with each other, and that considerable practical difficulties may be expected by those who
would comply with the requirements of both. Under Section 50-A, political parties are allowed to nominate their
official candidates for offices voted for at large within 150 days immediately preceding the election. At the very least,
this section would seem to permit a political party to hold a nominating convention within the 150 days period.
Section 50-B, however, makes it unlawful to promote or oppose the candidacy of any person seeking such office,
whether or not such person "has been nominated by any political party," and to engage in an election campaign "for
and against a candidate or party," except within the period of 120 days immediately preceding the election. I find it
difficult to see how a political party can stage a nominating convention 150 days before an election if, at such time,
neither any person nor group within such party may seek a nomination by campaigning among the delegates to the
convention. By its very, nature, a nominating convention is intrinsically a forum for intensely partisan political
activity. It is at the nominating convention that contending candidates obtain the formal endorsement and active
support of their party the ultimate purpose of victory at the polls. A nominating convention, at which activity
promoting or opposing the candidacies of particular persons seeking nominations is forbidden, is a practical
impossibility. Thus, the very broadness of prohibitions contained in Section 50-B has the effect of reducing, as a
practical matter, the time period specified in Section 50-A for nomination of candidates for national offices from 150
to 120 days before an election.
II
We turn to the central issue of constitutionality. That the legislature has, in broad principle, competence to enact laws
relative to the conduct of elections is conceded. Congress may not only regulate and control the place, time and
manner in which elections shall be held, but may also provide for the manner by which candidates shall be chosen. In
the exercise of the police power, Congress regulate the conduct of election campaigns and activities by political
parties and candidates, and prescribe measures reasonably appropriate to insure the integrity and purity of the electoral
process. Thus, it has not been seriously contested that Congress may establish restraints on expenditures of money in
political campaigns, 3 prohibit solicitation of votes for a consideration, 4 and penalize unlawful expenditures relative
to the nominations of dates. 5 Laws of this kind lie fairly within the area of permissible regulation, and I think, that, in
shaping specific regulations, Congressional discretion may be exercised within a wide range without remonstrance
from the courts.
If no more were at stake in Sections 50-A and 50-B than the political or personal convenience of a candidates faction
or political group, we could with the least hesitation resolve the issue of constitutionality in favor of the legislative
intendment. But infinitely more is at stake, for in enacting this prohibitions of Sections 50-A and 50-B, Congress has
place undeniable burdens upon the exercise of fundamental political and personal freedoms encased in the Bill of
Rights from legislative intrusion. There is firstly, a manifest restriction on the free exercise of the rights of speech and
of the press in the provisions of Section 50-B imposing a limitation of time on the following activities.
(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any
party or candidate or party;
 (d) Publishing or distributing, campaign. literature or materials
(e) Directly or indirectly soliciting votes and or undertaking any campaign or propaganda for or against any
candidate or party;
Likewise, the regulation of the time within which nominations of candidates by political parties may take place, under
Section 50-A, and fixing a time limit for holding "political conventions, caucuses, conference meetings, rallies,
parades, or other similar assemblies" for campaign purposes under paragraph (b) of Section 50-B, curtails the freedom
of peaceful assembly. And finally, the right to form associations for purposes not contrary to law is impinged upon by
the provision of paragraph (a) of Section 50-B regulating the forming of "Organizations, Associations, Clubs,
Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a party or candidate."
It is fairly accurate to say that legislations imposing restrictions upon the right of free expression, and upon the right
of assembly and of political association indispensable to the full exercise of free expression, have commonly been
subjected to more searching and exacting judicial scrutiny than statutes directed at other personal activities. As aptly
said by the United States Supreme Court in Schneider v. Irvington:6
In every case, ... where legislative abridgment of the rights is asserted, the courts should be astute to examine
the effect of the challenged legislation. Mere legislative preference or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities but be in sufficient to justify
such as diminishes are exercise of rights so vital to the maintenance of democratic institutions.
Thomas v. Collins7exemplifies the same approach: "The rational connection between the remedy provided and the evil
to be curbed, which in other contexts might support legislation against attack on other grounds, will not suffice. These
rights [of expression and assembly] rest on firmed foundations."
The belief that more exacting constitutional tests are appropriately applied upon statutes having an actual or potential
inhibiting effect on the right of speech, and the cognate rights of assembly and association, flows from recognition of
the nature and function of these rights in a free democratic society. Historically the guarantees of free expression were
intended to provide some assurance that government would remain responsive to the will of the people, in line with
the constitutional principle that sovereignty resides in the people and all government authority emanates from
them. 8 The viability of a truly representative government depends upon the effective protection and exercise of the
rights of the people to freely think, to freely discuss and to freely assemble for redress of their grievances; for these
underlie the mechanisms of peaceful change in a democratic polity. There is ample authority in history for the belief
that those who value freedom, but are frustrated in its exercise, will tend to resort to force and violent opposition to
obtain release from their repression. So essential are these freedoms to the preservation and vitality of democratic
institutions that courts have on numerous occasions categorized them as occupying a "preferred position" in the
hierarchy of civil liberties. 9 "That priority," intoned the court in Thomas v. Collins, supra, "gives these liberties a
sanctity and a sanction not per permitting dubious instrusions."
This is not to say that the rights of free expression and of peaceful assembly may not be constitutionally restricted by
legislative action. No one has seriously doubted that these rights do not accord immunity to every possible use of
language or to every form of assembly. Circumstances may arise in which the safety, perhaps the very survival of our
society, would demand deterrence and compel punishment of whomsoever would abuse these freedoms as well as
whomsoever would exercise them to subvert the very public order upon the stability of which these freedoms depend.
... It is a fundamental principle, long established, that the freedom of speech and of the press which is secured
by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one
may choose, or unrestricted or unbridled license that gives immunity for every possible use of language and
prevents the punishment of those who abuse this freedom.10
The right to freedom of speech, and to peaceful assembly and petition the government for redress of
grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of
democratic countries. But it is a settled principle growing out of the nature of well ordered civil societies that
the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to
regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is
the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and
general welfare of people.11
But in every case where there arises a clash between an assertion of State authority and the exercise of free speech and
assembly, it is ultimate the high function and duty of this court to locate the point of accomodation and equilibrium
and draw the line between permissible regulation and forbidden restraint.
It is now conventional wisdom that this function of delimitation and adjustment cannot meaningfully be carried out
through the iteration of abstract generalizations. The restriction that is assailed as unconstitutional must be judged in
the context of which it is part, taking into account the nature and substantiality of the community interest sought to be
protected or promoted by the legislation under assay, in relation to the nature and importance of the freedom restricted
and the character and extent of the restriction sought to be imposed.
III
Various standards have been evolved for the testing of the validity of a rule or regulation curtailing the rights of free
speech, free press, and peaceful assembly. At the earlier stages in the development of jurisprudence on the matter, it
was said that the State has the power to proscribe and punish speech which the State has the right to prevent." 12 The
"dangerous tendency" rule, as this formulation has been called, found favor in many decisions of this Court. 13
In the United States, the "dangerous tendency" doctrine was early abandoned, and superseded by the "clear and
present danger" rule. By the year 1919, the majority of the members of the United States Supreme Court got around to
accepting Justice Holmes' view that "the question in every case is whether the 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
Congress has a right to prevent." 14 To sustain legislation imposing limitations upon freedom of speech or of
assembly, a court must find that the evil sought to be avoided by the legislative restriction is both serious and
imminent in high degree. As stated in Bridges v. California: 15
... the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon
freedom of the speech or the press. The evil itself must be "substantial" ...; it must be "serious" ....
What clearly emerges from the "clear and present danger" cases is a working principle that the substantive
evil must be extremely serious and the degree of imminence extremely high before utterances can be
punished ...
The "clear and present danger" rule has been cited with approval, in at least two decisions of this Court. 16
The "dangerous tendency" and "clear and present danger" doctrines, it should not escape notice, were fashioned in the
course of testing legislation of a particular type legislation limiting speech expected to have deleterious consequences
on the security and public order of the community. The essential difference between the two doctrines related to the
degree of proximity of the apprehended danger which justified the restriction upon speech. The "dangerous tendency"
doctrine permitted the application of restrictions once a rational connection between the speech restrained and the
danger apprehended — the "tendency" of one to create the other — was shown. The "clear and present danger" rule,
in contrast, required the Government to defer application of restrictions until the apprehended danger was much more
visible until its realization was imminent and nigh at hand. The latter rule was thus considerably more permissive of
speech than the former, in contexts for the testing of which they were originally designed.
In other types of contexts, however, where the "substantive evil" which Congress seeks to avoid or mitigate does not
relate to the maintenance of public order in society, the adequacy or perhaps even the relevancy of these doctrines
cannot be casually assumed. It would appear to me that one of these contexts would be that where the legislation
under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where
the effect of speech and assembly in terms of the probability of realization of a specific danger is not susceptible even
of impressionistic calculation. I believe that Sections 50-A and 50-B come within such context. Congress enacted
these provisions not because it feared that speeches and assemblies in the course of election campaigns would,
probably or imminently, result in a direct breach of public order or threaten national security. Sections 50-A and 50-B
explicitly recognize that such speech and assembly are lawful while seeking to limit them in point of time.
However useful the "clear and present danger" formulation was in the appraisal of a specific type of situation, there is
fairly extensive recognition that it is not a rule of universal applicability and validity, not an automatic mechanism that
relieves a court of the need for careful scrutiny of the features of a given station and evaluation of the competing
interests involved.
In American Communications Ass'n v. Douds. 17 the United States Supreme Court unequivocally said that "in
suggesting that the substantive evil must be serious and substantial, it was never the intention of this Court to lay
down an absolutist test measured in terms of danger to the Nation." Rejecting the criterion of "clear and present
danger" as applicable to a statute requiring labor union officers to subscribe to a non-communist affidavit before the
union may avail of the benefits of the Labor Management Relations Act of 1947, the Court, speaking through Chief
Justice Vinson, said:
When particular conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting
interests demands the greater protection under the particular circumstances presented.... We must, therefore
undertake the delicate and difficult task ... to weigh the circumstances and to appraise the substantiality of the
reasons advanced in support of the regulation of the free enjoyment of rights.... 18
In enunciating a standard premised on a judicial balancing of the conflicting social values and individual interests
competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been
called the "balancing-of-interests" test which has found application in more recent decisions of the U.S. Supreme
Court. 19 Briefly stated, the "balancing" test requires a court to take conscious and detailed consideration of the
interplay of interests observable in a given situation or type of situation. 20
In the actual application of the "balancing-of-interests" test, the crucial question is: how much deference should be
given to the legislative judgment? It does not seem to me enough to say that this Court should not concern itself with
the wisdom of a particular legislative measure but with the question of constitutional power. I believe that we cannot
avoid addressing ourselves to the question whether the point of viable equilibrium represented by the legislative
judgment embodied in R.A. 4880 is an appropriate and reasonable one, in the light of both the historic purpose of the
constitutional safeguards of speech and press and assembly and the general conditions obtaining in the community.
Although the urgency of the public interest sought to be secured by Congressional power restricting the individual's
freedom, and the social importance and value of the freedom so restricted, "are to be judged in the concrete, not on the
basis of abstractions," 21 a wide range of factors are necessarily relevant in ascertaining the point or line of
equilibrium. Among these are (a) the social values and importance of the specific aspect of the particular freedom
restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect,
whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured by
the legislation — the reference here is to the nature and gravity of the evil which Congress seeks to prevent;(d)
whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such
public interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by some
other measure less restrictive of the protected freedom. 22
In my view, the "balancing-of-interests" approach is more appropriately used in determining the constitutionality of
Sections 50-A and 50-B. Both the "dangerous tendency" and "clear and present danger" criteria have minimum
relevancy to our task of appraising these provisions. Under these two tests, the statute is to be assayed by considering
the degree of probability and imminence with which "prolonged election campaigns" would increase the incidence of
"violence and deaths," "dominion of the rich in the political arena" and "corruption of the electorate." This kind of
constitutional testing would involve both speculation and prophecy of a sort for which this Court, I am afraid, has
neither the inclination nor any special competence.
IV
Applying the "balancing-of-interests" test or approach outlined above, I am persuaded that Congress did not exceed
constitutional limits in enacting Section 50-A. This Section, it will be recalled, makes it unlawful for any political
party or group to nominate a candidate for an elective public office earlier than the period of 150 or 90 days, as the
case may be, immediately preceding the election. No political party or group can claim a constitutional right to
nominate a candidate for public office at any time that such party or group pleases. The party nomination process is a
convenient method devised by political parties and groups, as a means of securing unity of political action. 23 As a
device designed for expediency of candidates and of political parties, the process of nomination — or at least the time
aspect thereof — must yield to the requirements of reasonable regulations imposed by the State. It may be well to note
that in many jurisdictions in the United States, the nomination of candidates for public office is regulated and
controlled in many aspects by statutes. 24 While the act of nominating a candidate has speech and assembly aspects,
the restrictive effect of Section 50-A would appear negligible. The reach of the statute is itself limited: it applies only
to political parties, political committees or political groups, leaving everyone else free from restraint. The thrust of
Section 50-A is also limited: it does not prohibit political parties from holding nominating conventions or from doing
any lawful thing during such conventions; what it controls is the scheduling of the nominating conventions; While
control of the scheduling of conventions of course involves delimitation of the time period which the formally
revealed candidates have to convince the electorate of their respective merits, those periods — 150 days and 90 days
— do not appear unreasonably short, at least not in this age of instantaneous and mass media.
On the other hand, the legitimacy and importance of the public interest sought to be promoted by Section 50-A must
be conceded. Congress has determined that inordinately early nominations by political parties or groups have the
tendency of dissipating the energies of the people by exposing them prematurely to the absorbing excitement of
election campaigns as we know them, and detracting from the attention that ought to be given to the pursuit of the
main task of a developing society like ours, which is the achievement of increasing levels of economic development
and social welfare.
The rational connection between the prohibition of Section 50-A and its object, the indirect and modest scope of its
restriction on the rights of speech and assembly, and the embracing public interest which Congress has found in the
moderation of partisan political activity, lead us to the conclusion that the statute may stand consistently with and does
not offend against the Constitution. The interest of the community in limiting the period of election campaigns, on
balance, far outweighs the social value of the kind of speech and assembly that is involved in the formal nomination
of candidates for public office.
V
I reach a different conclusion with respect to Section 50-B. Here, the restraint on the freedoms of expression,
assembly and association is direct. Except within the "open seen" of 120 and 90 days preceding the election, the
statute prevents and punishes — by heavy criminal sanction — speeches, writings, assemblies and associations
intended to promote or oppose the candidacy of any person aspiring for an elective public office, or which may be
deemed a direct or an indirect "campaign" or as "propaganda" for or against a political party. The prohibition reaches
not only "a relative handful of persons;" 25 applies to any person "whether or not a voter or candidate," and
to any group of persons "whether or not a political party or political committee." The effect of the law, therefore, is to
impose a comprehensive and prolonged prohibition of speech of a particular content, except during the 120 or 80
days, respectively, immediately preceding an election.
Thus, the moment any person announces his intention of seeking an elective public office, "regardless of whether or
not said person has already filed his certificate of candidacy or has been nominated by any political party as its
candidate," Section 50-B would become immediately operative. Should the aspirant make known his intention, say,
one year before the election, the law forthwith steps in to impose a "blackout," as it were, of all manner of discussion
in support of or in opposition to his candidacy. The lips of the candidate himself are by the threat of penal sanction
sealed, and he may not make a speech, announcement, commentary, or hold an interview to explain his claim to public
office or his credentials for leadership until the commencement of the period allowed for an "election campaign."
Neither may any person, before that period, speak out in open support or criticism of his candidacy, for that would
constitute a prohibited commentary "for or against the election of [a] candidate [albeit not a formally nominated
candidate] for public office," within the purview of paragraph (c) of Section 50-B. In practical effect, Section 50-B
would stifle comment or criticism, no matter how fair-minded, in respect of a given political party (whether in our out
of power) and prospective candidates for office (whether avowed or merely intending), and would abide all the
citizens to hold their tongues in the meantime.
What of the social value and importance of the freedoms impaired by Section 50-B? The legislation strikes at the most
basic political right of the citizens in a republican system, which is the right actively to participate in the establishment
or administration of government. This right finds expression in multiple forms but it certainly embraces that right to
influence the shape of policy and law directly by the use of ballot. It has been said so many times it scarcely needs to
be said again, that the realization of the democratic ideal of self-government depends upon an informed and
committed electorate. This can be accomplished only by allowing the fullest measure of freedom in the public
discussion of candidates and the issues behind which they rally; to this end, all avenues of persuasion — speech,
press, assembly, organization — must be kept always open. It is in the context of the election process that these
fundamental rigths secured by the Constitution assume the highest social importance.26
As to the formation of "organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate," 27 this is a right
which, like freedom of expression and peaceable assembly, lies at the foundation of a libertarian and democratic
society. 28 As Professor Kauper has explained, with characteristic lucidity:
 When we speak of freedom of association we may, have reference to it in a variety of contexts. Probably the
highest form of freedom of association, at least as many would see it, is the freedom to associate for political
purposes by means of organization of a political party and participation in its activities. The effective
functioning of a democratic society depends on the formation of political parties and the use of parties as
vehicles for the formulation and expression of opinions and policies. The minority party or parties become
vehicles for registering opposition and dissent. The political party is the indispensable agency both for
effective participation in political affairs by the individual citizen and for registering the diversity of views in
a pluralistic society. Indeed, under some other constitutional systems political parties are viewed as organs of
government and have a high constitutional status.29
We turn to the other end of the scales. As I have herein before observed, the interest of the state in regulating partisan
political activity, which is sought to, be secured by Section 50-B no less than by Section 50-A, is a legitimate one and
its protection a proper aim for reasonable exercise of the public power. I think, however, that that interest, important as
it is, does not offset the restrictions which Section 50-B imposes with indiscriminate sweep upon the even more
fundamental community interests embodied in the constitutional guarantees of speech, assembly and association. I
have adverted to Mills v. Alabama where the United States Supreme Court struck down the Alabama Corrupt Practices
Act to the extent that it prohibited, under penal sanctions, comments and criticism by the press on election day. The
statutory provision there in question 11, not unlike Section 50-B here, was sought to be sustained in the interest of
preserving the purity and integrity of the electoral process. The restriction which the Alabama statute imposed upon
freedom of speech and assembly would seem an inconsequential one — a restriction, imposed for one day, only one
day, election day; nevertheless, the United States Supreme Court regarded such restriction as sufficient to outweigh
the concededly legitimate purpose of the statute. We can do no less in respect of restrictious of such reach, scope and
magnitude as to make the limitation of the Alabama statute appear, in comparison, as an altogether trifling
inconvenience.
Indeed, if a choice is to be made between licentious election campaigns, which Section 50-B seeks to curtail, and the
muzzling, as it were, of public discussion of political issues and candidates, which the provision would effectuate, I
have no hesitancy in opting for the former. It is the only choice consistent with the democratic process. Fortunately,
there is no need to choose between one and the other; the dichotomy need not be a real one. I am not to be understood
as holding that Congress may not, in appropriate instances, forbid the abusive exercise of speech in election
campaigns. There is no constitutional immunity for a defamatory attack on a public candidate. Neither is there
protection for slander of public officials. 30 It has been held to be within the power of the legislature to penalize
specifically the making, in bad faith, of false charges of wrongdoing against a candidate for nomination or election to
public office, 31 and to prohibit the publication or circulation of charges against such candidate without serving him a
copy of such charges several days before the election. 32 Statutes of this kind have been sustained against broad
claims of impairment of freedom of speech and of the press. 33 "But it is an entirely different matter when the State,
instead of prosecuting [offenders] for such offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as a basis for criminal charge. 34
That remedies less destructive of the basic rights enshrined in the Constitution are not available, has not been shown.
The applicable principle here has been formulated in the following terms:
... even though the governmental purposes 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
purpose.35
Section 50-B, as it would casually lump together the activities of citizens exercising their constitutional rights and
those of politicians seeking the privilege of an elective office, is to broadly drawn to satisfy the constitutional test. The
more pernicious aspects of our national preoccupation with "politics" do not arise from the exercise, even the abuse,
by the electorate of the freedoms of speech and of the press; I find it difficult to suppose that these can be met by
curtailing expression, assembly and association. The great majority of our people are too preoccupied with demands
upon their time imposed by our generally marginal or submarginal standards of living. "Politics," as I see the
contemporary scene, is a dominant pre-occupation of only a handful of persons — the politicians, the professional
partymen. If the people at large become involved in the heat and clamor of an election campaign, it is ordinarily
because they are unduly provoked or frenetically induced to such involvement by the politicians themselves. As it is,
the great masses of our people do not speak loud enough — and, when they do, only infrequently — about our
government. The effect of the ban on speech would serve only to further chill constitutionally protected conduct on
their part which, instead of being suppressed, should on the contrary be encouraged.
It is not amiss to observe here that the making of politically oriented speeches and the dissemination of similar
literature, while they may divert the energies of those who make or write them and their audiences, would appear to
me to be among the less pernicious aspects of our national preoccupation with "politics." The more dangerous aspects
of our national preoccupation probably occur in privacy or secrecy and may be beyond the reach of measures like
Section 50-B.
It is argued in defense of the statute, nonetheless, that under the two provisos of Section 50-B, "simple expressions of
opinion and thoughts concerning the election" and expression of "views on current political problems or sues,"
including mentioning the names of candidates for public offices whom one supports, are not prohibited; hence,
freedom of expression is not unconstitutionally abridged by Section 50-B.
This argument is gravely flawed by the assumption that "simple expressions of opinion" and "views on current
political problems" cover the whole reach of the relevant constitutional guarantees. What about the rights of assembly
and lawful association? As to freedom of expression that cannot be confined to the realm of abstract political
discussions. It comprehends expression which advocates action, no less than that which merely presents an academic
viewpoint. Indeed, the value of speech in a democratic society lies, in large measure, in its role as an instrument of
persuasion, of consensual action, and for this reason it must seek to move to action by advocacy, no less than by mere
exposition of views. It is not mere coincidence that the farmers of our Constitution, in protecting freedom of speech
and of the press against legislative abridgment, coupled that freedom with a guarantee of the right of the people to
peaceably assemble and petition the government for the redress of grievances. The right of peaceful assembly for the
redress of grievances would be meaningless and hollow if it authorized merely the public expression of political
views, but not the advocacy of political reforms — even changes in the composition of the elective officialdom of the
administration.
There is another, equally basic, difficulty that vitiates the avowed constitutional utility of the provisos appended to
Section 50-B. Under the first proviso, it "simple expressions of opinion and thoughts concerning the election shall not
be considered as part of an election campaign." From the precise use of the word "simple" may be rationally drawn an
inference that "non-simple" expressions fall within the proscription of election campaigns. But the law conspicuously
fails to lay dawn a standard by which permissible electioneering. How simple is "simple"? In the absence of such a
standard, every speaker or writer wishing to make publicly known his views concerning the election and his
preferences among the candidates, must speak at his own peril. He could carefully choose his word's with the
intention of remaining within the area of speech left permissible by Section 50-B. But, in the nature of things, what
and who can provide him assurance that his words, "simple expressions of opinion and thoughts concerning the
election" as they may be, will not be understood by his audience or at least by some of them, or by the prosecuting
officers of the Government, or by the courts even, as a "speech" or "commentary" "for or against the election of ... a
candidate for public office," or at least an indirect solicitation of votes?
It is pertinent to advert to the Texas statute involved in Thomas v. Collins, supra, as illustrative of the vice of
vagueness that we find in Section 50-B. The Texas statute required all labor union organizers to first obtain organizer's
cards from the Secretary of State "before soliciting any members for his organization," and authorized the courts to
compel compliance by the issuance of court processes. Thomas, the president of a nationwide labor union, came to
Houston to address a mass meeting of employees of an oil plant which was undergoing unionization; but six hours
before he was scheduled to speak, he was served with a court order restraining him from soliciting members for the
local union which was affiliated with his organization, without first obtaining an organizer's card. For disobeying the
restraining order, he was found in contempt of court. The U.S. Supreme Court, reversing his conviction, found the
registration requirement an invalid restraint upon free speech and free assembly, thus:
That there was restriction upon Thomas' right to speak and the rights of the workers to hear what he had to
say, there can be no doubt. The threat of the restraining order, backed by the power of contempt, and of arrest
for crime, hung over every word. A speaker in such circumstance could avoid the words "solicit," "invite,"
"join". It would be impossible to avoid the idea. The statute requires no specific formula. It is not contended
that only the use of the word "solicit" would violate the prohibition. Without such a limitation, the statute
forbids any language which conveys, or reasonably could be found to convey, the meaning of invitation. That
Thomas chose to meet, the issue squarely, not to hide in ambiguous phrasing, does not counteract this fact.
General words create different and often particular impressions on different minds. No speaker, however
careful, can convey exactly his meaning, or the same meaning, to the different members of an audience. How
 one might "land unionism," as the State and the State Supreme Court concedes Thomas was free to do, yet in
these circumstances not imply an invitation, is hard to conceive. This is the nub of the case, which the State
fails to meet because it cannot do so, Workingmen to do lack capacity for making rational connections. They
would understand, or some would, that the president of U.A.W. and vice president of C.I.O. addressing an
organization meeting, was not urging merely, a philosophy attachment to abstract principles of unionism,
disconnected from the business immediately at hand. The feat would be incredible for a national leader,
addressing such a meeting, lauding unions and their principles, urging adherence to union philosophy, not
also and thereby to suggest attachment to the union by becoming a member.
Furthermore, whether words intended and designed to fall short of invitation would miss that mark is a
question, of intent and of effect. No speaker, in such circumstance safely could assume that anything lie might
say upon the general subject would not be understood by as an invitation. In short, the supposedly clear-cut
distinction between discussion and laudation, general advocacy, and solicitation puts the speaker in these
circumstance wholly at the mercy of the varied understanding of his hearers and consequently of whatever
inference may be drawn as to his intent and meaning.
Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty
whatever may be said. It compels the speaker to hedge and trim. He must take care in every word to create no
impression that he means, in advocating unionism's most central principle, namely, that workingmen should
unite for collective bargaining, to urge those present to do so. The vice is not merely that invitation, in the
circumstances shown here, is speech. It is also that its prohibition forbids or restrains discussion which is not
or may not be invitation. The sharp line cannot be drawn surely or securely. The effort to observe it could not
be free speech, free press, or free assembly, in any sense of free advocacy of principle or cause. The
restriction's effect, as applied, in a very practical sense was to prohibit Thomas not only to solicit members
and memberships but also to speak in advocacy of the cause or trade unionism in Texas, without having first
procured the card. Thomas knew this and faced the alternatives it presented. When served with the order he
had three choices: (1) to stand on his right and speak freely; (2) to quit, refusing entirety to speak; (3) to trim,
and even thus to risk the penalty. He chose the first alternative. We think he was within his lights in doing
so.36
The realism of the approach and reasoning employed in Thomas v. Collins commends itself; I think this kind of
realism should be applied to the task of appraising Section 50-B. Section 50-B forbids "directly or indirectly soliciting
votes and/or undertaking any campaign or propaganda for or against any candidate or party," including any language
"for or against the election of any party or candidate for public office," except within the specified periods preceding
the election.
If a minority political party were to hold a mass rally at Plaza Miranda within the prohibited period of an election
year, for the purpose of publicly expressing their criticism of the party in power, it is unthinkable that the public
speeches delivered during the occasion will not understood, by many if not by all, as a direct or an indirect campaign
or propaganda against a political party, as well as a direct or an indirect solicitation of votes. The audience will
certainly understand the occasion, not as a forum for indulging in criticism for criticism's sake, nor as a "simple"
discussion of political, philosophy, but as an invitation to unseat the party in power at the next election. If, upon the
other hand, the minority party should control one or both Houses of Congress and, for selfish partisan motives, oppose
all or a major portion of the significant measures sponsored by the Administration, regardless of their merits, for the
purpose of obtaining political partisan advantage, the Chief executive would, during the restricted period, find himself
hampered in vigorously placing blame squarely on such minority party. The Administration (and this includes the
Chief Executive himself) would be hard put to appeal to public opinion to exert pressure on the legislature to gain
support for what it may honestly believe to be constructive measures sorely needed to promote the country's progress.
The right of any party or politician to appeal to public opinion cannot be assailed; yet, when would such an appeal, in
which the opposition may have to be several criticized not constitute a violation of Section 50-B? Actual, pre-war and
postwar experience has shown that in a number of instances, the Chief Executive and leaders of his administration had
to mobilize public opinion (largely expressed through the press) to frustrate what they regarded as a calculated scheme
the opposition party of unreasonably interposing obstacles to a major part of essential legislation. It would indeed be
most difficult to determine with exactitude what utterances of the Administration leaders, including the Chief
Executive himself, would or would not constitute propaganda "for or against a political party."
Under these circumstances, I find the contraposition in Section 50-B between "expressions of opinion," on the one
hand, and "solicitation" and "campaign or propaganda," on the other, as too uncertain and shifting a line of distinction
to be of any practical utility either to the citizen or official who must speak at his own peril or to the prosecutors and
the courts who must enforce and apply the distinction.
Paragraph (f) of Section 50-B is tautological and question-begging. It defines "election campaign" as "giving,
soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." Insofar, therefore,
as the phrase "election campaign purposes" in paragraph (f) depends for its meaning on the preceding paragraphs (a),
(b), (c), (d) and(e), paragraph (f) likewise suffers from constitutional infirmity. Upon the other hand, if the meaning of
paragraph (f) be that the act of soliciting, giving or receiving contributions for the purpose of advancing the candidacy
of a person or party is "campaigning," then it is just as must a curtailment of the freedom of thought that the
Constitution vouchsafes to every citizen.
The foregoing disquisition could be compressed into the compelling perspective of this simple admonition: that
"speech concerning public affairs is more than self-expression; it is the essence of self-government." 37
In sum and substance, it is my considered view that Section 50-B of the Revised Election Code constitutes an
unconstitutional abridgment of the freedoms of speech, of the press, of peaceful assembly, and of lawful association.
I vote for its total excision from the statute books.
Dizon, Zaldivar and Capistrano, JJ., concur.
BARREDO, J., concurring and dissenting:
I concur in the resulting dismissal of this case, but I candidate give my assent to so much of the opinion, brilliantly
written for the Court by Mr. Justice Fernando, as would give the imprimatur of constitutionality to any portion of
Section 50-B of the statute before Us. Hereunder are my humble but sincere observations.
I am of the firms conviction that this case should be dismissed. In fact, it is not clear to me why the petition herein
was ever given due course at all No matter how I scan its allegations, I cannot find anything in them more than a
petition for relief which is definitely outside the original jurisdiction of this Court. Petitioners themselves have
expressly brought it as a petition for relief; it is the majority that has decided to pull the chestnuts out of the fire by
holding that it should be "treated by this Court as one of prohibition in view of the seriousness and the urgency of the
constitutional issue raised." Frankly I consider this relaxation rather uncalled for; it could border on over eagerness on
the part of the Supreme Court, which is not only taboo in constitutional cases but also certainly not befitting the role
of this Tribunal in the tripartite scheme of government We have in this Republic of ours. I am afraid the majority is
unnecessarily opening wide the gate for a flood of cases hardly worthy of our attention, because the parties concerned
in many cases that will come to Us may not see as clearly as We do the real reasons of public interest which will move
Us when We choose in the future to either entertain or refuse to take cognizance, of cases of constitutionality. Withal,
We cannot entirely escape the suspicion that We discriminate.
Since after all, the majority admits that "When We act in these matters, We do not do so on the assumption that to Us
is granted the requisite knowledge to set matters right, but by virtue of the responsibility We cannot escape under the
Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, when
our competence is appropriately invoked", (underscoring mine) and, further, no one can deny that it is now firmly
established that among the indispensable requirements before this Court can take up constitutional question is that We
can do it only when it, involves a real and genuine situation causing direct substantial injury to specific persons, as
contradistinguished from mere speculative fears of possible general hardship or mere inconvenience, I feel it would be
much safer for Us, and our position would be more in word with the rule of law, if We adhered strictly to the above
requirement and threw out cases of the nature of the present one, if only out of the traditional respect this Tribunal
owes the two other coordinate and co-equal departments of our government. In the petition at bar, there are no
allegations of specific acts of the respondent Commission on Elections or even only threatened to be committed by it,
pursuant to the challenged legislation, which they claim impairs, impedes, or negates any rights of theirs considered to
be constitutionally protected against such impairment, impeding or negation. It is very clear to me that in this case,
our jurisdiction has not been properly invoked. Considering how multifaceted the law in question is, one is completely
at a loss as to how petitioner request for a blanket prohibition and injunction can be considered, in the light of existing
principles that strictly limit our power to take cognizance of constitutional cases only to those that can pass the test I
have mentioned above.
What is more, I regret to have to say that what the majority is doing by taking further cognizance of and deciding this
case is to brush aside the stark reality that the interest in this case of petitioners Cabigao and Gonzales, the first, as
candidate, and the second, as his leader, related only to the elections of 1967 wherein, in fact, Cabigao was elected
Vice-Mayor of Manila. Accordingly, this case has already become entirely academic even as a prohibition, because
neither Cabigao nor his leader, Gonzales, can conceivably have any further imaginable interest in these proceedings.
How can we proceed then, when petitioners' interest no longer exists and whatever decision We may make will no
longer affect any situation involving said petitioners. Clearly to me, what the majority has done is to motu
proprio convert the action of petitioners into a taxpayer's suit, which may not be proper because there no specific
expenditure of public funds involved here. Besides, if petitioners have not come with a supplemental petition still
complaining, why are We going to assume that they are still complaining or, for that matter, that there are other
persons who are minded to complain, such that We have to give or deny to them here and now the reason to do so?
Again, I say, the Court seems to be trying to bite more than it can chew, since cases of this nature 1 will surely come in
great numbers and We will have to accommodate them all, otherwise the exercise of our discretion in rejecting any of
them can be questioned and may at times be really questionable. My basic principle is that the rule of law avoids
creating areas of discretionary powers, and the fact that it is the Supreme Court that exercises the discretion does not
make it tolerable in any degree, for such an eventuality can be worse because no other authority can check Us and the
people would be helpless, since We cannot be changed, unlike the President and the Members of Congress who can, in
effect, be recalled in the elections. Of course, I have faith in the individual and collective wisdom and integrity of each
and every one of my fellow members of this Court, but I still prefer that We exercise discretion only when it is clearly
granted to Us, rather than for Us to create by our own fiat the basis for its exercise.
The other question assailing my mind now, is this: Is there any precedent, whether here or in any other jurisdiction
where the Supreme Court has the power to declare legislative or executive acts unconstitutional, wherein any supreme
court had insisted on deciding grave constitutional questions after the case had become completely moot and academic
because the interest of the actors alleged in their pleading had ceased to exist? I don't believe there has been any,
which is as it should be, because if this Court and even inferior court dismiss ordinary cases which have become moot
and academic, with much more reason should such action be taken, in cases wherein the unconstitutionality of a law
or executive order is raised, precisely for the reasons of principle already stated and fully discussed in other
constitutional cases so well known that they need not be cited here anymore.
It is for these considerations that I join the majority in dismissing this case. And I want to acknowledge that I am
heartened in any stand by the fact that in the deliberations, at least, Mr. Justice Makalintal expressed similar views as
mine, so much so that, in his particular case, he did not even care to discuss the constitutional questions herein
invoIved precisely because they are not appropriately before this Court. 1a On the other hand, if the majority's position
is correct that this Court may properly consider this case as one of prohibition and that it should be decided despite its
having become clearly academic, I would definitely cast my vote with Mr. Justice Castro to declare unconstitutional
Section 50-B of the legislative enactment in question, Republic Act 4880, more popularly known as the Tañada-
Singson Law. Unlike him, however, I shall not indulge in a complete discussion of my stand on the constitutional
questions herein involved, since the opportunity to voice fully my views will come anyway when the proper case is
filed with Us. It is only because some members of the Court feel that we should make known what are, more or less,
our personal opinions, so that the parties concerned may somehow be guided in what they propose to do or are doing
in relation to the coming election, that I shall state somehow my fundamental observations, without prejudice to their
needed enlargement if and when the appropriate opportunity comes. Indeed, in my humble view, what the Court is
rendering here is in the nature of an advisory opinion and I am sure all the members of the Court will agree with me
that in doing this we are departing from the invariable posture this Court has always taken heretofore. In other words,
we are just advancing now, individually and collectively, what our votes and judgment will be should an appropriate
case come, unless, of course, as some of our colleagues have wisely observed in other cases where I have made
similar observations, We change our mind after hearing the real parties in interest.
Coming now to the constitutional problems posed by the pleadings, I have these to say, for the time being:
1. The first specific act defined by the statute in question as "election campaign" or "partisan political activity"
proscribed by it within the stipulated limited period of one hundred twenty days prior to an election at large and ninety
days in the case of any other election is to "form(ing) organizations, associations, clubs, committees or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or
candidate." No law more effective, if less disguised, could have been conceived to render practically impossible the
organization of new political parties in this country. If for this reason alone, I consider this provision to be deserving
of the severest condemnation as an unparalleled assault on the most sacred and fundamental political rights of our
citizenry. In the light of the recent political experience of the strong of heart and idealists amongst us, this measure
appears to me as a perfect or, at least, a near-perfect scheme for the perpetuation of the status quo and the
entrenchment of the presently existing political parties, particularly, the two major ones, whether or not we share the
cynical reference to them by the discerning as nothing but twin peas in the same pod. This is not to say that such was
what motivated its authors, particularly Senator Tanada, for whom I have always had the highest regard for his never-
questioned sincerity of purpose, patriotism and libertarian principles, which opinion of mine is undoubtedly shared by
all the member of this Court. I must insist, however, that such is what appears to me to be unmistakably the evident
effect of the prohibition under discussion it is most probable that in its passion to remedy as early as possible the evils
it feels exist, Congress has overlooked unwittingly some of the possible implications of this particular measure.
It is one thing to prohibit a political party from actively campaigning outside a certain period of time and it is entirely
another thing to prohibit citizens who are not contented with the existing political parties to organize, outside the same
period, any new political party which they feel will better serve the public weal. 1b Before it is contended that this
provision does allow the organization of new political parties within the abovementioned periods of one hundred
twenty and ninety days preceding each respective election referred to, I hasten to add that the said periods are so
obviously insufficient that to some it would appear as if the reference to such brief periods of free organization in the
provision was just inserted into it to camouflage its real but unmentionable intentions and/or to blunt any challenge of
unconstitutionality.
All our people have been witnesses to events of contemporary history which have clearly demonstrated the futility of
organizing a new political party or even just a front or alliance within such a short time. To name the gallant national
figures who have met frustration in such endeavor even with much more time at their disposal is to prove that the task
is simply next to impossible, no matter if it were undertaken by men of the best reputation in integrity and nobility of
ideals. It is surely of common knowledge that the work of organization alone of a party, not to speak of the actual
participation and influence such party is intended to effectuate in the ensuing election, can hardly be accomplished,
within the four months provided by the statute, with sufficient success to be of any consequence, specially, on a
national level, which is what is needed most, because while local issues seem to arouse more interest among the
electors, national issues have a profound effect on the lives and liberties of all the people. It must be borne in mind, in
this connection, that our country is made up of more than 7,000 islands scattered throughout the length and breadth of
the archipelago. Those who have taken part in one way or another in an electoral campaign of national dimension
know only too well that one can hardly cover a majority of these islands, not to speak of all of them, within such an
abbreviated period.
Moreover, in the light of contemporary trends of political thinking and action, very much more than the present
condition of things about which there is, to be sure, so much hypocritical hue and cry, particularly, among those whom
the present-day Robin Hoods, in and out of the government have not attended to, to engender a general feeling of
dissatisfaction and need for change in such widespread proportions as to readily galvanize enough elements to rise in
peaceful revolution against the existing political parties and bring about the formation within the short span of four
months of a new political party of adequate or at least appreciable strength and effectiveness in the national arena.
Even the obviously sincere efforts of the undaunted who keep on trying their luck, pitted against the marked
complacency and indifference of the present and passing generations, if not their incomprehensible inability to
overcome the inertia that seems to be holding them from pushing the scattered protests here and there, more or less
valid and urgent, to their logical conclusion, generate but very little hope that the expected reaction can materialize
during our time.
Needless to say, no matter if one looks at the current scenes thru the most rosy spectacles, a ban against the formation
of new political parties is definitely out of the question. A total expressed ban is, of Course, repugnant to any decent
sense of freedom. Indeed, a disguised even if only partial, is even more intolerable in this country that does not
pretend to have but does truly have democratic bearings deeply rooted in the history of centuries of heroic uprisings
which logically culminated in the first successful revolution of a small nation against despotism and colonialism in
this part of the world.
It is to be conceded that the adequacy or inadequacy of the means adopted by Congress in the pursuit of a legislative
recognized objective is generally irrelevant to the courts in the determination of the constitutionality of a
congressional action. I must be quick to add, however, that this rule can be salutary only if the adequacy is
controversial, but when the inadequacy of the means adopted is palpable and can reasonably be assumed to be known
or ought to be known generally by the people, such that it is a foregone conclusion that what is left licit by the law can
be nothing more than futile gestures of empty uselessness, I have no doubt that the judicial can rightfully expose the
legislative act for what it is — an odious infraction of the charter of our liberties. Other the principle of respect for
coordinate and co-equal authority can be a tyranny forbidding the courts from striking down what is not
constitutionally permissible. I am ready to agree that the judiciary should give allowances for errors of appreciation
and evaluation of the circumstances causing the passage of a law, but if it is true, as it is indeed true, that the Supreme
Court is the guardian next only to the people themselves of the integrity of the Constitution and the rights and liberties
it embodies and sanctifies, I would consider it an unpardonable abdication of our peculiar constitutionally-destined
role, if We closed Our eyes and folded Our arms when a more or less complete ban against the organization of new
political parties in this countries is being attempted to be passed before Us as a legitimate exercise of police power.
At this point, it is best to make it clear that the particular constitutional precept with which the statutory provision in
question is inconsistent and to which therefore, it must yield is Paragraph 6, Section 1, Article III of the Bill of Rights
of the Constitution which ordains:
The right to form associations or societies for purposes not contrary to law shall not be abridged.
Incidentally, the indigenous cast of this provision is seemingly emphasized by Mr. Justice Fernando by his reference
to its origin in the Malolos Constitution of 1896. 2 Indeed, there it was provided:
Article 19
No Filipino in the full enjoyment of his civil and political rights shall be hindered in the free exercise thereof.
Article 20
Neither shall any Filipino, be deprived of:
1. ...
2. The right of joining any associations for all objects of human life which may not be contrary to public
moral; ...
It is to be observed that in the light of its text and origin, the statutory provision under scrutiny forbids the
abridgement of the right of inhabitants of this country to form associations and societies of all kinds, including and
most of all, for the citizens, political parties, the sole exception being when the association or society is formed for
purposes contrary to law. It is unquestionable that the formation of an ordinary political party cannot be for purposes
contrary to law. On the contrary, the organization of political parties not dedicated to the violent overthrow of the
government is an indispensable concomitant of any truly democratic government. Partyless governments are travesties
of the genuine concept of democracy. The immediate repulsion that fated straws in the wind thrown in favor of such
an anachronistic proposal here in the Philippines is still fresh in the memory of many of our countrymen. Our people
are firmly set on the inseparability of political parties from a democratic way of life. To ban political parties here is to
kill democracy itself.
And now comes this legislation banning the formation of political parties except within certain limited periods of
time, so short, as I have already demonstrated, that in effect, the ban is a total one. Can them be a more flagrant
violation of the constitutional guarantee of freedom of association? Besides, since it is undeniable that the evils
Congress seeks to remedy cannot be said to have all been brought about by the formation of new political parties, but
rather by the anomalous, irregular, corrupt and illegal practices of the existing political parties, why does the
legislature have to direct its wrath against new political parties, which, for all we know, can yet be the ones that will
produce the much needed innovation in the political thinking and actions of our electorate which will precisely do
away with the defects of the present political system? As I see it, therefore, the remedy embodied in the disputed
provision is so clearly misdirected that it cannot, under any concept of constitutional law, be tolerated and considered
constitutionally flawless, on the theory that it is just a case of error in the choice of means, on the part of Congress, to
attain the objective it has in mind, hence beyond the pale of judicial review.
To be sure, the phrase "for purposes not contrary to law" in the constitutional provision above quoted did not pass
unnoticed during the debates in the constitutional convention. To some delegates, it appeared that said phrase renders
nugatory the freedom it guarantees, for the simple reason that with said phrase the lawmakers are practically given the
attribute to determine what specific associations may be allowed or not allowed, by the simple expedient of outlawing
their purposes — prophetic vision, indeed! No less than Delegate Jose P. Laurel, who later became an honored
member of this Court, had to explain that "the phrase was inserted just to show that the right of association guaranteed
in the Constitution was subject to the dominating police power of the state." (Aruego,id.)
To my mind, this explanation of Delegate Laurel renders the prohibition in the law in question more vulnerable to the
charge of unconstitutionality. It is to me simply inconceivable that the state can ever forbid the formation of political
parties in the assertion of its "dominating police power". I reiterate that political parties are an absolute necessity in a
democracy like ours. As a matter of fact, I dare say police power would be inexistent unless the political parties that
give life to the government which exercises police power are allowed to exist. That is not to say that political parties
are above the state. All that I mean is that without political parties, a democratic state cannot exist; what we will have
instead is a police state.
No more than momentary reflection is needed to realize that much as our Constitution projects, it would appear, the
desirability of the two-party system of government. there is nothing in it that even remotely suggests that the present
political parties are the ones precisely that should be perpetuated to the prejudice of any other. Less reflection is
needed for one to be thoroughly convinced that to prohibit the organization of any new political party is but a short
step away from implanting here the totalitarian practice of a one-ticket election which We all abhor. Absolute freedom
of choice of the parties and men by whom we shall be governed, even if only among varying evils, is of the very
essence in the concept of democracy consecrated in the fundamental law of our land.
So much, for the time being, for the prohibition against new political parties. Let us go now to the other freedoms
unconstitutionally impinged by the legislation at bar.
2. If I vehemently decry the attempt in this law to curtail our freedom to organize political parties whenever it may
please us to do so for being not only violative of the letter of the constitution but contrary also to the democratic
traditions of our people and likewise a patent disregard of the very essence of a democratic form of government, I
cannot have less repugnance and abhorence for the further attempt in this law to do away with the freedoms of speech
and the press and peaceful assembly. Lest I be misunderstood, however, as being an ultra-activist, it should be clear at
the outset that in holding that the above prohibitions contained in the statute in question are violative of the
Constitution, my stand is limited to my fundamental conviction that the freedoms of speech, of the press and of
peaceful assembly and redress of grievances are absolute when they are being exercised in relation to our right to
choose the men and women by whom we shall be governed. I hold neither candle nor brief for licentious speech and
press, but I recognize no power that can pre-censor much less forbid any speech or writing, and peaceful assembly and
petition for the redress of grievances, the purpose of which is no more than to express one's belief regarding the
qualification or lack of them, the merits and the demerits of persons who are candidates for public office or of political
parties vying for power, as well as the principles and programs of government and public service they advocate, to the
end that when voting time comes the right of suffrage may be intelligently and knowingly, even if not always wisely,
exercised. If, in the process, there should be in any manner any baseless attacks on the character and private life of any
candidate or party or some form of inciting to public disorder or sedition, the offender can be rightfully haled to court
for libel or the violation of the penal provisions on public order and national security, as the facts may warrant, but
never can anyone, much less the state, have the power to priorly forbid him to say his piece.
Paragraphs (b), (c), (d) and (e) of Section 1 of the challenged legislation cover practically a common subject matter.
They all define as "election campaign" or is "partisan political activity" forbidden to be exercised within the
aforementioned periods the following liberties:
The term "Election Campaign" or "Partisan Political Activity" refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or persons to a public office which shall include:
(a) ...
(b) Holding political conventions, caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purposes of soliciting votes and/or undertaking any campaign or propaganda for or against
any candidate or party;
(c) Making speeches, announcements or commentaries or holding interviews for or against the election of any
party or candidate for public office;
(d) Publishing or distributing campaign literature or materials;
(e) Directly or indirectly soliciting votes and/or undertaking propaganda for or against any candidate or party;
Naturally, it is my uncompromising view, that by these provisions the act directly violates the plain injunction
provision of the Constitution to the effect that:
No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably
to assemble and petition the Government for redress of grievances. (Par. [8], Sec. 1, Art. III of the
Constitution)
My colleagues are impressed by the objectives of the legislative measure before Us. Mr. Justice Fernando voices the
feeling of some of them in the opening paragraph of the Court's opinion thus: "A statute designed to maintain the
purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged
political campaigns, bringing in their wake serious evils not the least of which is the ever-increasing cost of seeking
public office, is challenged on constitutional grounds." Mr. Justice Castro proclaims said objectives as practically self-
evident and heartily endorses, by quoting in toto, the purposes avowed in the explanatory note of Senate Bill 209
which finally became the subject statute. Mr. Justice Sanchez is a little more factual as he opines:
State authority here manifests itself in legislation intended as an answer to the strong public sentiment that
politics is growing into a way of life, that political campaigns are becoming longer and more bitter. It is a
result of a legislative appraisal that protracted election campaign is the root of undesirable conditions. Bitter
rivalries precipitate violence and deaths. Huge expenditures of funds give deserving but poor candidates slim
chances of winning. They constitute an inducement to graft to winning candidates already in office in order to
recoup campaign expenses. Handouts doled out by and expected from candidates corrupt the electorate.
Official duties and affairs of state are neglected by incumbent officials desiring to run for reelection. The life
and health of candidates and their followers are endangered. People's energies are dissipated in political
bickerings and long drawn-out campaigns. (2nd par., p. 4, concurring & dissenting opinion of Mr. Justice
Sanchez) .
I hope I will be forgiven for having to view things differently. Indeed, I would like to ask the optimists in and out of
Congress to silence the trumpets they have sounded to herald the approval of this law. I agree that generally no court
and no member of this Tribunal has the right to quarrel with Congress in its choice of means to combat the evils in a
legislatively recognized situation, but are We, as the Supreme Court, to seal our lips even when we can plainly see that
a congressional measure purported allegedly to do away with certain evils does, on the contrary, promote those very
same evils it is supposed to remedy, on top of impinging on our sacred constitutional freedoms, and at that, with the
aggravating element of giving undue advantage to the incumbents in office and to the existing political parties?
A closer look at the way the prohibitions contained in the section of the law in dispute will work will reveal how
detrimental they are to the basic public interest, nay, to the right of suffrage itself. I like to reiterate over and over, for
it seems this is the fundamental point others miss, that genuine democracy thrives only where the power and right of
the people to elect the men to whom they would entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, "The Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from them." (Section 1, Article II) Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in it can be governed
only by officials whom they themselves have placed in office by their votes. And it is on this cornerstone that I hold it
to be self-evident that when the freedoms of speech, press and peaceful assembly and redress of grievances are being
exercised in relation to suffrage or as a means to enjoy the inalienable right of the qualified citizen to vote, they are
absolute and timeless. If our democracy and republicanism are to be worthwhile, the conduct of public affairs by our
officials must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and at all
times. Every holder of power in our government must be ready to undergo exposure any moment of the day or night,
from January to December every year, as it is only in this way that he can rightfully gain the confidence of the people.
I have no patience for those who would regard public dissection of the establishment as an attribute to be indulged by
the people only at certain periods of time. I consider the freedoms of speech, press and peaceful assembly and redress
of grievances, when exercised in the name of suffrage, as the very means by which the right itself to vote can only be
properly enjoyed. It stands to reason therefore, that suffrage itself would be next to useless if the liberties cannot be
untrammelled whether as to degree or time.
It must be noted that the proscription contained in this law is against the use altogether of the freedom of speech, press
and peaceful assembly in relation to the candidacy of a person for public office, not against the use of such freedoms
in order to damage the character of any particular person or to endanger the security of the state. No matter how I
view, it I cannot see how using said freedoms in the interest of someone's candidacy beyond the prescribed
abbreviated period can do any harm to the common weal. I regret I came too late to this Court to be able to hear what I
have been made to understand was Senator Tañadas very informative arguments. With all due respect to what might
have been showing by the distinguished Senator, I personally feel the present measure premature and misdirected. The
incidence and reincidence of bloody occurences directly or indirectly caused by electoral rivalries cannot be denied,
but unless shown convincing and reliable statistical data, I have a strong feeling that those who entertain these
apprehensions are influenced by unwarranted generalizations of isolated cases. Not even the residents of such
allegedly troublous areas as Ilocos Sur, the Lanao provinces, Cavite, Cebu and Nueva Vizcaya will admit that the
situation in those places is so beyond control as to necessitate, at any time, the complete suppression of expression of
views, oral and in writing for or against person handling public affairs or; aspiring to do so.
As the above-quoted provisions stand, every imaginable form of political activity, whether done individually or
suprisingly by a person, or collectively, by a number of persons, is covered by their prohibitions. Under the said
provisions, during twenty months in every two years, there are only three things Filipinos can do in relation to the
conduct of public affairs by those they have voted into power and the relative capacity or incapacity of others to take
their places, namely: (1) simple expressions of opinion and thought concerning the election; (2) expression of views
on current political problems and issues; and (3) mention the candidates whom one supports.
If these exceptions in the statute are not absurd, little comfort can be found beneath their umbrage. As to the first
exception, Mr. Justice Castro very aptly asks, how simple is simple? I would like to add to the impeccable structures
of my esteemed colleague, if I may be permitted, the humble observation that the phrase "concerning the election" is
to me too equivocal, if it is not incomprehensible, to be part of a penal statute such as this law is, with the heavy
penalty of imprisonment from one year to five years, disqualification to hold public office for not less than one year
nor more than nine years and deprivation of the right to vote for a like period that it imposes. To express an opinion as
regards elections in general is something that is indubitably outside the area of any possible legislative proscription
and to do so in relation to a forthcoming specific election without any discernible hue of an appeal for support for one
protagonist or another is to say nothing worthwile, that is, if it is possible to conceive of anyone referring to an actual
impending election with complete impartiality. On the other hand, to express one's views regarding an actual election
with mention of the qualifications or disqualifications of the candidates and the political parties involved, cannot
escape the coverage of the prohibition in question.
As to the second exception, what views on current political problems and issues can be expressed without necessarily
carrying with them undercurrents of conformity or non-conformity with the present state of things and, directly or
indirectly, with the ways of the incumbents in office? And as to the last exception, who can be these candidates whose
names would possibly be mentioned by any sympathizer, when candidates are not allowed by this law to be nominated
earlier than practically the same period as the prohibitions against campaigns? .
I can well understand the predicament of Congress. It has attempted to define the indefinable. Any intent to
circumscribe the areas of basic liberties cannot end but in absurdity. To insist on drawing artificial boundaries for their
enjoyment must necessarily result in confusion and consequent protracted controversy and debate which can only give
occasion for the inordinate exercise of power for power's sake. A definition that comprehends substantially what
should not be included is no definition at all. The right of our people to speak and write freely at all times about our
government and those who govern us, only because we have elected them, cannot be subjected to any degree of
limitation without virtual loss of the right itself. The moment it become impossible for the inhabitants of this country
to express approval or disapproval of the acts of the government and its officials without imperilling their personal
liberty, their right to hold office and to vote, and such appears to be the natural consequence of the injunctions of this
law, we cannot be far away from the day when our Constitution will be hardly worth the paper on which it is written.
I find it difficult to dissociate the prohibition in this law from the obvious advantages they give to those presently
holding office by election and to the existing political parties.
Under the definition of the terms "candidate" and "election campaign or "partisan political activity" contained in the
section we are assaying it is clear that what the statute contemplates are candidates for public offices. Accordingly,
candidates for nomination by their respective political parties do not appear to be comprehended within the
prohibition; so, as long as a person campaigns, even publicly, only for nomination by his party, he is free to expose
himself in any way and to correspondingly criticize and denounce all his rivals. The fact that the law permits in
Section 50-A the holding of political conventions and the nominations of official candidates one month before the
start of the period of the prohibitions in Section 50-B, lends strength to this conclusion. 3 .
Such being the case, the undue advantage of the aspirants for nomination within the existing political parties over
independent candidates becomes evident. The legal period fixed by the law will start in July, and yet, we have long
been witnesses already to all sorts of campaigns, complete to the last detail - what with the newspaper and radio and
television campaign matters being published and broadcast as widely as possible, the campaigners armed or endowed
with either experience, money or pulchritude or what may pass for it, welcoming wave after wave of party delegates
arriving at the airports and the piers, the billeting of these delegates in luxurious and costly hotels, at the cost of the
candidates and with pocket money to boot, the sumptuous banquets and parties, etc., etc. And to top it all, a well
publicized marathon "consensus" which has reportedly cost the candidates millions of pesos! In other words, in the
actual operation of this law, it is only the independent candidate, the candidate who does not belong to the existing
political parties and who is prohibited to organize a new one, who must keep his ambitions and aspirations all to
himself and say nary a word, lest he jeopardize his liberty and his rights to hold office and to vote, while those who
belong to the said parties merrily go about freely gaining as much exposure as possible before the public. I need not
refer to the tremendous advantages that accrue to the party in power and to all incumbents, irrespective of political
party color, from the operation of this law. They should be obvious to any observer of current events.
Under these circumstances, can it be successfully maintained that such disparity of opportunities for those who
legitimately want to offer their services to the people by getting elected to public office, resulting from a congressional
act approved by those who would benefit from it, is constitutionally flawless? When it is considered that this law
impinges on the freedoms of speech, press, assembly and redress of grievances and that its only justification is that it
is intended to remedy existing evil practices and undesirable conditions and occurrences related to the frequency of
elections and the extended campaigns in connection therewith, and it is further considered that, as demonstrated
above, this law, in its actual operation impairs and defeats its avowed purposes because, in effect, it deprives the
independent candidates or those who do not belong to the established political parties of equal opportunity to expose
themselves to the public and make their personal qualifications, principles and programs of public service known to
the electorate, to the decided advantage of the incumbents or, at least, those who are members of the existing political
parties, it can be easily seen that the curtailment of freedom involved in this measure cannot be permitted in the name
of police power. I am certain none can agree that resort to police power may be sanctioned when under the guise of
regulating allegedly existing evils, a law is passed that will result in graver evil than that purported to be avoided. As
far as I can understand the commitment of our people to the principle of democracy and republicanism, we would
rather have the bloodshed, corruption and other alleged irregularities that come with protracted electoral campaigns
and partisan political activity, than suffer the continued mockery of their right to vote by limiting, as this legislation
does, their right of choice only to those whom the existing political parties might care to present as official candidates
before them. If this would be all that the right of suffrage would amount to, the death of Hitler and Mussolini might
just as well be considered as the most lamentable tragedies in the history of freemen and we should welcome with
open arms the importation into this country of the kind of elections held in Russia and Red China.
A few considerations more should make those who believe in the efficacy and constitutionality of this law take a
second hard look at it. Then, they will realize how mistaken they must be. I have said earlier that this act defeats its
own avowed purposes. Well, all that have to be considered for anyone to see my point is that in the matter of reducing
the cost of elections by limiting the period of campaigns, current events have clearly proven that instead of lessening
their expenditures, candidates have spent more than they would have done without such limitation. Because of the
shortness of the period provided for the calling of conventions for the nomination of official candidates by political
parties and the more abbreviated period that the candidate who would be ultimately nominated and the parties
themselves will have to campaign to win in the election, these parties have resorted to other means of having, at least,
even a semi-official candidate, without calling him so. And this, as everybody knows means money, money and
money.
The truth known to all who have political experience is that no candidate for a position voted at large nationally can
entertain any hopes of winning after a campaign of only four months. It took at least a year for Presidents Magsaysay,
Macapagal and Marcos to win the presidency. None of the senators we have and have had can boast of having
campaigned only for four months. In view of the abbreviated period of campaign fixed in this law, necessarily the
candidates have to redouble their efforts, try to cover more area in less time, see more people every moment, distribute
more propaganda, etc., etc., and all these mean money, more money and more money. In this set up, so neatly
produced by this law, it is regretably evident that the poor candidates have no chance. How can a poor candidate cover
the more than 7,000 islands of our archipelago in four months? If it was impossible to do so when there was no
limitation of the period for campaigns, what chance can such a poor candidate have now? Thus, it can be seen that this
law has not only made candidates spend more than they used to do before, it has effectively reduced the chances and
practically killed the hopes of poor candidates. Under this law, it may truthfully be said that the right to be elected to a
public office is denied by reason of poverty.
My brethren view the problem before Us as one calling for the reconciliation of two values in our chosen way of life -
individual freedom, on the one hand, and public welfare, on the other. I do not see it that way. To my mind, if the
freedoms of speech, press, peaceful assembly and redress of grievances in regard to the right to vote can be impinged,
if not stifled, by standards and limitations fixed by those who are temporarily in power, I would regard those freedoms
as no freedoms at all, but more concessions of the establishment which can be reduced or enlarged as its convenience
may dictate. Of what use can such kind of freedom be? .
Taking all circumstances into account, it is entirely beyond my comprehension, how anyone could have conceived the
idea of limiting the period of electoral campaigns in this country, when what we need precisely is more intelligent
voting by the greater portion of our people. I do not believe our mass media have reached the degree of efficiency in
the dissemination of information needed to enable the voters to make their choices conscientiously and with adequate
knowledge of the bases of their decisions. I am not convinced that at this stage of our national life we are already
prepared to enjoy the luxury of abbreviated electoral campaigns, unless we are inclined to forever have with us the
areas of political bossism, apparent statistical improbabilities and politico-economic blocs and even politico-religious
control which we have; in varying degrees these days and which will naturally continue as long as our people are not
better informed about the individual worth of the candidates for or against whom they vote. I dare say that there is
enough reason to hold that if mistakes have been committed by our people in the selection of their elective officials, it
is because the information needed to serve as basis for intelligent voting have not fully reached all segments of the
population. Inadequacy of reliable information among the voters, regarding the qualification of the candidates and the
relevant circumstances of the election they are taking part in can be the greatest bane of popular suffrage.
Modesty aside, it is quite well known that it has been my lot to have handled, alone or with others, some of the most
important political cases in the country since the end of the second world war. To be able to do so, I had to study our
election laws assiduously perhaps as any other Filipino has. From what I have thus learned, I can safely say that the
present laws are reasonably adequate to prevent lavish and excessive expenditures for electoral purposes. The real
cause for regret is the lack of proper implementation of these laws. I dare say that even the courts, not excluding this
Supreme Court, and specially the Electoral Tribunals of the Senate and the House of Representatives have been rather
liberal in interpreting them, so much so, that the unscrupulous have succeeded in practically openly violating them
with a cynical sense of impunity. The recent case of the ouster of Senators Manglapus, Kalaw and Antonino was a
singular one, wherein the spirit of the law triumphed, even as it brought to the fore the necessity of making more
realistic the ceilings of allowable expenditures at the time when the cost of everything has multiplied several times
compared to that when the existing limitations were established. Indeed, these unrealistic limitations, as to the
amounts of expenditures candidates may make, has somehow compelled the corresponding authorities to overlook or
even condone violations of these laws, and somehow also, this attitude has given courage to practically everybody to
pay little heed to the statutory limitations, thus giving cause to the excessive overspending the authors of the law now
in question are seeking to stop or, at least, minimize. I say again, Congress does not have to sacrifice or even just risk
the loss or diminution only of any of our sacred liberties to accomplish such a laudable objective. All that has to be
done, in my considered opinion, is to have more sincerity, mental honesty and firm determination in the
implementation of the limitations fixed in the Election Law, after they have been made more realistic, and real
devotion and integrity in the official's charged with said implementation. If few may agree with me, I still entertain the
trustful feeling that it is not entirely hoping against hope to expect our national leaders to regain their moral bearings
and, in a bold effort to sweep away the darkening clouds of despair that envelope a great many of our countrymen,
with well recognized intellectuals and non-politicians among them, to take active measures to exert their moral
leadership, to the end that our nation may regenerate by revising our people's sense of political values and thus, as
much as possible, put exactly where they belong the vote-buyers the political terrorist, the opportunists and the
unprincipled who have sprung in this era of moral decadence that seem to have come naturally in the wake of the
havoc and devastation resulting from the extension of the area of the last world war to our shores. If even this hope
cannot linger in our hearts, I dread to imagine how the Filipinos who will come after us will enjoy their lives, when in
the exercise of their right of suffrage they would be able to use their freedoms of speech, press, peaceful assembly and
redress of grievances only in measured doses to be administered to them by those in power in the legislature.
Frankly, I am not aware of any similar legislation in other democracies of the world. The defenders of the law in
question have not cited any. If perhaps the cases of some countries I hear may be mentioned, I loathe to follow their
example because I hold it is illogical for us to legislate for our people, who have been reared in the principles of
democracy, in the light of what is being done by people who from time immemorial have been disciplined under more
or less dictatorial and totalitarian governments.
Before I close, I like to add, in the interest of truth, that even stripped of the ornaments of foreign wisdom expressed
in embellished language that adorn the opinions of our learned colleagues, Justice Sanchez, Castro and Fernando, their
own views so exquisitely articulated by them in their respective singular styles which have been the object of
admiration and respect by all, are in themselves not only gems of forensic literatures but are also indubitable evidence
of judicial sagacity and learning. I am making it a point to separate their own personal views from their quotations of
alien authorities, because as a matter of national pride and dignity, I would like it known that when it comes to
constitutional matters particularly, civil liberties and the other individual freedoms, the members of this Tribunal are
not without their own native geniuses and individual modes of expression that can stand on their own worth without
any reinforcement from imported wisdom and language.
May I say in closing that, if my above analysis and perspectives, if these views and conclusions of mine regarding the
constitutional questions herein involved are not exactly factual and valid, I would still reiterate them, if only to serve
as a feeble voice of alarm that somehow our basic liberties may be in jeopardy and it is best that we revolve early to
man the outposts and steady our guard, least we awaken one dawn with nothing left to us but repentance, for having
failed to act when we could, amidst the ashes of the freedoms we did not know how to defend and protect. That
eternal, incessant and unyielding vigilance is the price of liberty is still and will ever be true at all times and in all
lands.

297 U.S. 233

Grosjean v. American Press Co., Inc. (No. 303)

Argued: January 14, 1936

Decided: February 10, 1936.

10 F.Supp. 161, affirmed.

 Syllabus

 Opinion, Sutherland

Syllabus

1. As respects the amount in controversy, the District Court has jurisdiction of a

suit where the requisite value is involved as to each of several plaintiffs though
not involved as to others. P. 241.

2. A motion to dismiss the whole case because the amount in controversy as to

some of the plaintiffs is too small should be overruled. Id.

3. There is equitable jurisdiction to enjoin collection of an allegedly

unconstitutional state tax where the taxpayer, if he pays, is afforded no clear
remedy of restitution. P. 242.

4. Liberty of the press is a fundamental right protected against state aggression

by the due process clause of the Fourteenth Amendment. P. 242.

5. The fact that, as regards the Federal Government, the protection of this right is
not left to the due process clause of the Fifth Amendment, but is guaranteed in
specie by the First Amendment, is not a sufficient reason for excluding it from the
due process clause of the Fourteenth Amendment. P. 243.

6. A corporation is a "person" within the meaning of the due process and equal
protection clauses of the Fourteenth Amendment. P. 244.
7. A State license tax (La.Act No. 23, July 12, 1934) imposed on the owners of
newspapers for the privilege of selling or charging for the advertising therein, and
measured by a percent. of the gross receipts from such advertisements, but
applicable only to newspapers enjoying a circulation of more than 20,000 copies
per week, heldunconstitutional. P. 244.

8. From the history of the subject, it is plain that the English rule restricting
freedom of the press to immunity from censorship before publication was not
accepted by the American colonists, and that the First Amendment was aimed at
any form of previous restraint upon printed publications or their circulation,
including restraint by taxation of newspapers and their advertising, which were
well known and odious methods still used in England when the First Amendment
was adopted. P. 245.[p234]

9. The predominant purpose of the grant of immunity was to preserve an

untrammeled press as a vital source of public information. P. 250.

10. Construction of a constitutional provision phrased in terms of the common law

is not determined by rules of the common law which had been rejected in this
country as unsuited to local civil or political conditions. P. 248.

It is not intended in this case to suggest that the owners of newspapers are
immune from any of the ordinary forms of taxation for support of Government.
The tax in question is not an ordinary form of tax, but one single in kind, with a
long history of hostile misuse against the freedom of the press. The manner of its
use in this case is, in itself, suspicious; it is not measured or limited by the
volume of advertisements, but by the extent of the circulation of the publication
in which the advertisements are carried, with the plain purpose of penalizing the
publishers and curtailing the circulation of a selected group of newspapers.

APPEAL from a decree permanently enjoining the enforcement of a state tax on

newspapers.[p240]

TOP

Opinion

SUTHERLAND, J., Opinion of the Court

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

This suit was brought by appellees, nine publishers of newspapers in the State of
Louisiana, to enjoin the enforcement against them of the provisions of § 1 of the
act of the legislature of Louisiana known as Act No. 23, passed and approved July
12, 1934, as follows:

That every person, firm, association, or corporation, domestic or foreign, engaged

in the business of selling, or making any charge for, advertising or for
advertisements, whether printed or published, or to be printed or published, in
any newspaper, magazine, periodical or publication whatever having a circulation
of more than 20,000 copies per week, or displayed and exhibited, or to be
displayed and exhibited by means of moving pictures, in the State of Louisiana,
shall, in addition to all other taxes and licenses levied and assessed in this State,
pay a license tax for the privilege of engaging in such business in this State of
two percent. (2%) of the gross receipts of such business.

The nine publishers who brought the suit publish thirteen newspapers, and these
thirteen publications are the[p241] only ones within the State of Louisiana having
each a circulation of more than 20,000 copies per week, although the lower court
finds there are four other daily newspapers each having a circulation of "slightly
less than 20,000 copies per week" which are in competition with those published
by appellees both as to circulation and as to advertising. In addition, there are
120 weekly newspapers published in the state, also in competition, to a greater
or less degree, with the newspapers of appellees. The revenue derived from
appellees' newspapers comes almost entirely from regular subscribers or
purchasers thereof and from payments received for the insertion of
advertisements therein.

The act requires everyone subject to the tax to file a sworn report every three
months showing the amount and the gross receipts from the business described
in § 1. The resulting tax must be paid when the report is filed. Failure to file the
report or pay the tax as thus provided constitutes a misdemeanor and subjects
the offender to a fine not exceeding $500, or imprisonment not exceeding six
months, or both, for each violation. Any corporation violating the act subjects
itself to the payment of $50 to be recovered by suit. All of the appellees are
corporations. The lower court entered a decree for appellees and granted a
permanent injunction. 10 F.Supp. 161.

First. Appellant assails the federal jurisdiction of the court below on the ground
that the matter in controversy does not exceed the sum or value of $3,000, as
required by par. 1 of § 24 of the Judicial Code. The case arises under the Federal
Constitution, and the bill alleges, and the record shows, that the requisite amount
is involved in respect of each of six of the nine appellees. This is enough to
sustain the jurisdiction of the district court. The motion was to dismiss the bill --
that is to say, the bill in its entirety -- and in that form it was properly denied. No
motion to dismiss was made or considered[p242] by the lower court as to the three
appellees in respect of whom the Jurisdictional amount was insufficient, and that
question, therefore, is not before us. The Rio Grande, 19 Wall. 178, 189; Gibson
v. Shufelt,122 U.S. 27, 32.

Second. The objection also is made that the bill does not make a case for
equitable relief. But the objection is clearly without merit. As pointed out in Ohio
Oil Co. v. Conway, 279 U.S. 813, 815, the laws of Louisiana afford no remedy
whereby restitution of taxes and property exacted may be enforced, even where
payment has been made under both protest and compulsion. It is true that the
present act contains a provision (§ 5) to the effect that, where it is established to
the satisfaction of the Supervisor of Public Accounts of the state that any
payment has been made under the act which was "not due and collectible," the
Supervisor is authorized to refund the amount out of any funds on hand collected
by virtue of the act and not remitted to the state treasurer according to law. It
seems clear that this refers only to a payment not due and collectible within the
terms of the act, and does not authorize a refund on the ground that the act is
invalid. Moreover, the act allows the Supervisor to make remittances immediately
to the state treasurer of taxes paid under the act, and requires him to do so not
later than the 30th day after the last day of the preceding quarter, in which event
the right to a refund, if not sooner exercised, would be lost. Whether an
aggrieved taxpayer may obtain relief under § 5 is, at best, a matter of
speculation. In no view can it properly be said that there exists a plain, adequate
and complete remedy at law. Davis v. Wakelee, 156 U.S. 680, 688; Union Pacific R.
Co. v. Weld County, 247 U.S. 282, 285.

Third. The validity of the act is assailed as violating the Federal Constitution in
two particulars -- (1) that it abridges the freedom of the press in contravention of
the due process clause contained in § 1 of the Fourteenth[p243] Amendment; (2)
that it denies appellees the equal protection of the laws in contravention of the
same Amendment.

1. The first point presents a question of the utmost gravity and importance, for, if
well made, it goes to the heart of the natural right of the members of an
organized society, united for their common good, to impart and acquire
information about their common interests. The First Amendment to the Federal
Constitution provides that "Congress shall make no law . . . abridging the
freedom of speech, or of the press. . . ." While this provision is not a restraint
upon the powers of the states, the states are precluded from abridging the
freedom of speech or of the press by force of the due process clause of the
Fourteenth Amendment.

In the case of Hurtado v. California, 110 U.S. 516, this Court held that the term "due
process of law" does not require presentment or indictment by a grand jury as a
prerequisite to prosecution by a state for a criminal offense. And the important
point of that conclusion here is that it was deduced from the fact that the Fifth
Amendment, which contains the due process of law clause in its national aspect,
also required an indictment as a prerequisite to a prosecution for crime under
federal law, and it was thought that, since no part of the amendment could be
regarded as superfluous, the term "due process of law" did not, ex vi
termini, include presentment or indictment by a grand jury in any case, and that
the due process of law clause of the Fourteenth Amendment should be interpreted
as having been used in the same sense, and as having no greater extent. But
in Powell v. Alabama, 287 U.S. 45, 65, 68, we held that, in the light of subsequent
decisions, the sweeping language of the Hurtado case could not be accepted
without qualification. We concluded that certain fundamental rights, safeguarded
by the first eight amendments against federal action, were also
safeguarded[p244] against state action by the due process of law clause of the
Fourteenth Amendment, and among them, the fundamental right of the accused
to the aid of counsel in a criminal prosecution.

That freedom of speech and of the press are rights of the same fundamental
character, safeguarded by the due process of law clause of the Fourteenth
Amendment against abridgement by state legislation, has likewise been settled by
a series of decisions of this Court beginning with Gitlow v. New York, 268 U.S. 652,
666, and ending withNear v. Minnesota, 283 U.S. 697, 707. The word "liberty"
contained in that amendment embraces not only the right of a person to be free
from physical restraint, but the right to be free in the enjoyment of all his
faculties as well. Allgeyer v. Louisiana, 165 U.S. 578, 589.

Appellant contends that the Fourteenth Amendment does not apply to

corporations; but this is only partly true. A corporation, we have held, is not a
"citizen" within the meaning of the privileges and immunities clause. Paul v.
Virginia, 8 Wall. 168. But a corporation is a "person" within the meaning of the
equal protection and due process of law clauses, which are the clauses involved
here. Covington & Lexington Turnpike Co. v. Sandford, 164 U.S. 578, 592; Smyth v.
Ames, 169 U.S. 466, 522.

The tax imposed is designated a "license tax for the privilege of engaging in such
business" -- that is to say, the business of selling, or making any charge for,
advertising. As applied to appellees, it is a tax of two percent. on the gross
receipts derived from advertisements carried in their newspapers when, and only
when, the newspapers of each enjoy a circulation of more than 20,000 copies per
week. It thus operates as a restraint in a double sense. First, its effect is to curtail
the amount of revenue realized from advertising, and, second, its
direct[p245] tendency is to restrict circulation. This is plain enough when we
consider that, if it were increased to a high degree, as it could be if valid
(Magnano Co. v. Hamilton, 292 U.S. 40, 45, and cases cited), it well might result in
destroying both advertising and circulation.

A determination of the question whether the tax is valid in respect of the point
now under review requires an examination of the history and circumstances which
antedated and attended the adoption of the abridgement clause of the First
Amendment, since that clause expresses one of those "fundamental principles of
liberty and justice which lie at the base of all our civil and political institutions"
(Hebert v. Louisiana, 272 U.S. 312, 316), and, as such, is embodied in the concept
"due process of law" (Twining v. New Jersey, 211 U.S. 78, 99), and, therefore,
protected against hostile state invasion by the due process clause of the
Fourteenth Amendment. Cf. Powell v. Alabama, supra, pp. 67-68. The history is a
long one, but, for present purposes, it may be greatly abbreviated.

For more than a century prior to the adoption of the amendment -- and, indeed,
for many years thereafter -- history discloses a persistent effort on the part of the
British government to prevent or abridge the free expression of any opinion which
seemed to criticize or exhibit in an unfavorable light, however truly, the agencies
and operations of the government. The struggle between the proponents of
measures to that end and those who asserted the right of free expression was
continuous and unceasing. As early as 1644, John Milton, in an "Appeal for the
Liberty of Unlicensed Printing," assailed an act of Parliament which had just been
passed providing for censorship of the press previous to publication. He
vigorously defended the right of every man to make public his honest views
"without previous censure", and declared the impossibility of finding any man
base enough to accept[p246] the office of censor and at the same time good
enough to be allowed to perform its duties. Collett, History of the Taxes on
Knowledge, vol. I, pp. 6. The act expired by its own terms in 1695. It was never
renewed, and the liberty of the press thus became, as pointed out by Wickwar
(The Struggle for the Freedom of the Press, p. 15), merely "a right or liberty to
publish without a license what formerly could be published only with one." But
mere exemption from previous censorship was soon recognized as too narrow a
view of the liberty of the press.

In 1712, in response to a message from Queen Anne (Hansard's Parliamentary

History of England, vol. 6, p. 1063), Parliament imposed a tax upon all
newspapers and upon advertisements. Collett, vol. I, pp. 8-10. That the main
purpose of these taxes was to suppress the publication of comments and
criticisms objectionable to the Crown does not admit of doubt. Stewart, Lennox
and the Taxes on Knowledge, 15 Scottish Historical Review, 322-327. There
followed more than a century of resistance to, and evasion of, the taxes, and of
agitation for their repeal. In the article last referred to (p. 326), which was
written in 1918, it was pointed out that these taxes constituted one of the factors
that aroused the American colonists to protest against taxation for the purposes
of the home government, and that the revolution really began when, in 1765,
that government sent stamps for newspaper duties to the American colonies.

These duties were quite commonly characterized as "taxes on knowledge," a

phrase used for the purpose of describing the effect of the exactions and at the
same time condemning them. That the taxes had, and were intended to have, the
effect of curtailing the circulation of newspapers, and particularly the cheaper
ones whose readers were generally found among the masses of the people, went
almost without question, even on the part of[p247] those who defended the act.
May (Constitutional History of England, 7th ed., vol. 2, p. 245), after discussing
the control by "previous censure," says:

. . . a new restraint was devised in the form of a stamp duty on newspapers and
advertisements -- avowedly for the purpose of repressing libels. This policy, being
found effectual in limiting the circulation of cheap papers, was improved upon in
the two following reigns, and continued in high esteem until our own time.

Collett (vol. I, p. 14), says,

Any man who carried on printing or publishing for a livelihood was actually at the
mercy of the Commissioners of Stamps, when they chose to exert their powers.
Citations of similar import might be multiplied many times, but the foregoing is
enough to demonstrate beyond peradventure that, in the adoption of the English
newspaper stamp tax and the tax on advertisements, revenue was of subordinate
concern, and that the dominant and controlling aim was to prevent, or curtail the
opportunity for, the acquisition of knowledge by the people in respect of their
governmental affairs. It is idle to suppose that so many of the best men of
England would for a century of time have waged, as they did, stubborn and often
precarious warfare against these taxes if a mere matter of taxation had been
involved. The aim of the struggle was not to relieve taxpayers from a burden, but
to establish and preserve the right of the English people to full information in
respect of the doings or misdoings of their government. Upon the correctness of
this conclusion the very characterization of the exactions as "taxes on knowledge"
sheds a flood of corroborative light. In the ultimate, an informed and enlightened
public opinion was the thing at stake, for, as Erskine, in his great speech in
defense of Paine, has said, "The liberty of opinion keeps governments themselves
in due subjection to their[p248] duties." Erskine's Speeches, High's ed. vol. I, p.
525. See May's Constitutional History of England, 7th ed., vol. 2, pp. 238-245.

In 1785, only four years before Congress had proposed the First Amendment, the
Massachusetts legislature, following the English example, imposed a stamp tax on
all newspapers and magazines. The following year, an advertisement tax was
imposed. Both taxes met with such violent opposition that the former was
repealed in 1786, and the latter in 1788. Duniway, Freedom of the Press in
Massachusetts, pp. 136-137.

The framers of the First Amendment were familiar with the English struggle,
which then had continued for nearly eighty years and was destined to go on for
another sixty-five years, at the end of which time it culminated in a lasting
abandonment of the obnoxious taxes. The framers were likewise familiar with the
then recent Massachusetts episode, and while that occurrence did much to bring
about the adoption of the amendment (see Pennsylvania and the Federal
Constitution, 1888, p. 181), the predominant influence must have come from the
English experience. It is impossible to concede that, by the words "freedom of the
press," the framers of the amendment intended to adopt merely the narrow view
then reflected by the law of England that such freedom consisted only in
immunity from previous censorship, for this abuse had then permanently
disappeared from English practice. It is equally impossible to believe that it was
not intended to bring within the reach of these words such modes of restraint as
were embodied in the two forms of taxation already described. Such belief must
be rejected in the face of the then well known purpose of the exactions and the
general adverse sentiment of the colonies in respect of them. Undoubtedly, the
range of a constitutional provision phrased in terms of the common law
sometimes may be fixed by recourse to the applicable rules of that[p249] law. But
the doctrine which justifies such recourse, like other canons of construction, must
yield to more compelling reasons whenever they exist. Cf. Continental Illinois Nat.
Bank v. Chicago, R.I. & P. Ry. Co., 294 U.S. 648, 668-669. And, obviously, it is
subject to the qualification that the common law rule invoked shall be one not
rejected by our ancestors as unsuited to their civil or political conditions. Murray's
lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276-277; Waring v.
Clarke, 5 How. 441, 454-457; Powell v. Alabama, supra, pp. 60-65.

In the light of all that has now been said, it is evident that the restricted rules of
the English law in respect of the freedom of the press in force when the
Constitution was adopted were never accepted by the American colonists, and
that, by the First Amendment, it was meant to preclude the national government,
and, by the Fourteenth Amendment, to preclude the states, from adopting any
form of previous restraint upon printed publications, or their circulation, including
that which had theretofore been effected by these two well known and odious
methods.

This court had occasion in Near v. Minnesota, supra at pp. 713 et seq.,to discuss
at some length the subject in its general aspect. The conclusion there stated is
that the object of the constitutional provisions was to prevent previous restraints
on publication, and the court was careful not to limit the protection of the right to
any particular way of abridging it. Liberty of the press within the meaning of the
constitutional provision, it was broadly said (p. 716), meant "principally, although
not exclusively, immunity from previous restraints or [from] censorship."

Judge Cooley has laid down the test to be applied --

The evils to be prevented were not the censorship of the press merely, but any
action of the government by[p250] means of which it might prevent such free and
general discussion of public matters as seems absolutely essential to prepare the
people for an intelligent exercise of their rights as citizens.

2 Cooley's Constitutional Limitations, 8th ed., p. 886.

It is not intended by anything we have said to suggest that the owners of

newspapers are immune from any of the ordinary forms of taxation for support of
the government. But this is not an ordinary form of tax, but one single in kind,
with a long history of hostile misuse against the freedom of the press.

The predominant purpose of the grant of immunity here invoked was to preserve
an untrammeled press as a vital source of public information. The newspapers,
magazines and other journals of the country, it is safe to say, have shed and
continue to shed, more light on the public and business affairs of the nation than
any other instrumentality of publicity, and, since informed public opinion is the
most potent of all restraints upon misgovernment, the suppression or
abridgement of the publicity afforded by a free press cannot be regarded
otherwise than with grave concern. The tax here involved is bad not because it
takes money from the pockets of the appellees. If that were all, a wholly different
question would be presented. It is bad because, in the light of its history and of
its present setting, it is seen to be a deliberate and calculated device in the guise
of a tax to limit the circulation of information to which the public is entitled in
virtue of the constitutional guaranties. A free press stands as one of the great
interpreters between the government and the people. To allow it to be fettered is
to fetter ourselves.

In view of the persistent search for new subjects of taxation, it is not without
significance that, with the single exception of the Louisiana statute, so far as we
can discover, no state during the one hundred fifty years of our[p251] national
existence has undertaken to impose tax like that now in question.

The form in which the tax is imposed is, in itself, suspicious. It is not measured or
limited by the volume of advertisements. It is measured alone by the extent of
the circulation of the publication in which the advertisements are carried, with the
plain purpose of penalizing the publishers and curtailing the circulation of a
selected group of newspapers.

2. Having reached the conclusion that the act imposing the tax in question is
unconstitutional under the due process of law clause because it abridges the
freedom of the press, we deem it unnecessary to consider the further ground
assigned that it also constitutes a denial of the equal protection of the laws.

Decree affirmed.

G.R. No. L-1800 January 27, 1948

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.
Ramon Diokno for petitioner.
City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.
FERIA, J.:
This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of the Coalesced
Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel the latter to issue a permit for
the holding of a public meeting at Plaza Miranda on Sunday afternoon, November 16, 1947, for the purpose of
petitioning the government for redress to grievances on the groun that the respondent refused to grant such permit.
Due to urgency of the case, this Court, after mature deliberation, issued a writ of mandamus, as prayed for in the
petition of November 15, 1947, without prejudice to writing later an extended and reasoned decision.
The right of freedom of speech and to peacefully assemble and petition the government for redress of grievances, are
fundamental personal rights of the people recognized and guaranteed by the Constitutions of democratic countries.
But it a casettled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is
not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal
rights, not injurious to the rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power" which is the power to prescribe regulations, to promote
the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police
power is exercised by the government through its legislative branch by the enactment of laws regulating those and
other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities,
and cities authorizing their legislative bodies, called municipal and city councils to enact ordinances for the purpose.
The Philippine legislature has delegated the exercise of the police power to the Municipal Board of the City of
Manila, which according to section 2439 of the Administrative Code is the legislative body of the City. Section 2444
of the same Code grants the Municipal Board, among others, the following legislative power, to wit: "(p) to provide
for the prohibition and suppression of riots, affrays, disturbances, and disorderly assemblies, (u) to regulate the use of
streets, avenues ... parks, cemeteries and other public places" and "for the abatement of nuances in the same," and
"(ee) to enact all ordinances it may deem necessary and proper for sanitation and safety, the furtherance of prosperity
and the promotion of morality, peace, good order, comfort, convenience, and general welfare of the city and its
inhabitants."
Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844 and 1119. Section
of the Revised Ordinances of 1927 prohibits as an offense against public peace, and section 1262 of the same Revised
Ordinance penalizes as a misdemeanor, "any act, in any public place, meeting, or procession, tending to disturb the
peace or excite a riot; or collect with other persons in a body or crowd for any unlawful purpose; or disturb or disquiet
any congregation engaged in any lawful assembly." And section 1119 provides the following:
"SEC. 1119 Free for use of public — The streets and public places of the city shall be kept free and clear for
the use of the public, and the sidewalks and crossings for the pedestrians, and the same shall only be used or
occupied for other purposes as provided by ordinance or regulation: Provided, that the holding of athletic
games, sports, or exercise during the celebration of national holidays in any streets or public places of the city
and on the patron saint day of any district in question, may be permitted by means of a permit issued by the
Mayor, who shall determine the streets or public places or portions thereof, where such athletic games, sports,
or exercises may be held: And provided, further, That the holding of any parade or procession in any streets or
public places is prohibited unless a permit therefor is first secured from the Mayor who shall, on every such
ocassion, determine or specify the streets or public places for the formation, route, and dismissal of such
parade or procession: And provided, finally, That all applications to hold a parade or procession shall be
submitted to the Mayor not less than twenty-four hours prior to the holding of such parade or procession."
As there is no express and separate provision in the Revised Ordinance of the City regulating the holding of public
meeting or assembly at any street or public places, the provisions of saif section 1119 regarding the holding of any
parade or procession in any street or public paces may be applied by analogy to meeting and assembly in any street or
public places.
Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse, to grant permit for the holding of a lawful assembly or meeting, parade, or
procession in the streets and other public places of the City of Manila; and the other is that the applicant has the right
to a permit which shall be granted by the Mayor, subject only to the latter's reasonable discretion to determine or
specify the streets or public places to be used for the purpose, with the view to prevent confusion by overlapping, to
secure convenient use of the streets and public places by others, and to provide adequate and proper policing to
minimize the risk of disorder.
After a mature deliberation, we have arrived at the conclusion that we must adopt the second construction, that is
construe the provisions of the said ordinance to mean that it does not confer upon the Mayor the power to refuse to
grant the permit, but only the discretion, in issuing the permit, to determine or specify the streets or public places
where the parade or procession may pass or the meeting may be held.
Our conclusions find support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In
that case, the statute of New Hampshire P.L. Chap. 145, section 2, providing that "no parade or procession upon any
ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the select men
of the town or from licensing committee," was construed by the Supreme Court of New Hampshire as not conferring
upon the licensing board unfetted discretion to refuse to grant the license, and held valid. And the Supreme Court of
the United States in its decision (1941) penned by Chief Justice Hughes firming the judgement of the State Supreme
Court, held that " a statute requiring pewrsons using the public streets for a parade or procession to procure a special
license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or a
freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a consideration, the time, place, and manner of the parade and procession, with
a view to conserving the public convenience and of affording an opportunity to provide proper policing and are not
invested with arbitrary discretion to issue or refuse license, ... ."
We can not adopt the alternative construction or constru the ordinance under consideration as conferring upon the
Mayor power to grant or refuse to grant the permit, which would be tantamount to authorizing him to prohibit the use
of the streets and other public places for holding of meetings, parades or processions, because such a construction
would make the ordinance invalid and void or violative of the constitutional limitations. As the Municipal Boards is
empowered only to regulate the use of streets, parks, and the other public places, and the word "regulate," as used in
section 2444 of the Revised Administrative Code, means and includes the power to control, to govern, and to restrain,
but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong Sing vs. City of Manila, 41
Phil., 103), the Municipal Board can not grant the Mayor a power that it does not have. Besides, the powers and duties
of the Mayor as the Chief Executive of the City are executive and one of them is "to comply with and enforce and
give the necessary orders for the faithful performance and execution of laws and ordinances" (section 2434 [b] of the
Revised Administrative Code), the ligislative police power of the Municipal Board to enact ordinances regulating
reasonably the excercise of the fundamental personal rights of the citizens in the streets and other public places, can
not be delgated to the Mayor or any other officer by conferring upon him unregulated discretion or without laying
down rules to guide and control his action by which its impartial execution can be secured or partiality and oppression
prevented.
In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under Rev. ST. Ill. c. 24,
article 5 section 1, which empowers city councils to regulate the use of public streets, the council has no power to
ordain that no processions shall be allowed upon the streets until a permit shall be obtained from the superintendent of
police, leaving the issuance of such permits to his discretion, since the powers conferred on the council cannot be
delegated by them.
The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104, held the
following:
"The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also, in substance, the
same, for the ordinance in that case upon its face committed to the unrestrained will of a single public officer
the power to determine the rights of parties under it, when there was nothing in the ordinance to guide or
cintrol his action, and it was held void because "it lays down no rules by which its impartial execution can be
secured, or partiality and oppression prevented." and that "when we remember that action or nonaction may
proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper
influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary
to suggest or to comment upon the injustice capable of being wrought under cover of such a power, for that
becomes apparent to every one who gives to the subject a moment's consideration. In fact, an ordinance
which clothes a single individual with such power hardly falls within the domain of law, and we are
constrained to pronounce it inoperative and void." ... In the exercise of police power, the council may, in its
discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress them, directly or
indirectly, by attempting to commit the power of doing so to the mayor or any other officer. The discretion
 with which the council is vested is a legal discretion, to be exercised within the limits of the law, and not a
discretion to transcend it or to confer upon any city officer and arbitrary authority, making him in its exercise
a petty tyrant."
In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons, or associations
or organizations shall march, parade, ride or drive, in ou upon or through the public streets of the City of Grand
Rapids with musical instrument, banners, flags, ... without first having obtained the consent of the mayor or common
council of said city;" was held by the Supreme Court of Michigan to be unreasonable and void. Said Supreme Court in
the course of the decision held:
". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it is not plainly
unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep
order, and suppress mischief, in accordance with the limitations and conditions required by the rights of the
people themselves, as secured by the principles of law, which cannot be less careful of private rights under the
constitution than under the common law."
"It is quite possible that some things have a greater tendency to produce danger and disorder in cities than in
smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing further; and
no inference can extend beyond the fair scope of powers granted for such a purpose, and no grant of absolute
discretion to suppress lawful action altogther can be granted at all. . . . ."
"It has been customary, from time immemorial, in all free countries, and in most civilized countries, for
people who are assembled for common purposes to parade together, by day or reasonable hours at night, with
banners and other paraphernalia, and with music of various kinds. These processions for political, religious,
and social demonstrations are resorted to for the express purpose of keeping unity of feeling and enthusiasm,
and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a
natural product and exponent of common aims, and valuable factors in furthering them. ... When people
assemble in riotous mobs, and move for purposes opposed to private or public security, they become
unlawful, and their members and abettors become punishable. . . ."
"It is only when political, religious, social, or other demonstrations create public disturbances, or operate as a
nuisance, or create or manifestly threaten some tangible public or private mischief, that the law interferes."
"This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and because it leaves
the power of permitting or restraining processions, and thier courses, to an unregulated official discretion,
when the whole matter, if regualted at all, must be permanent, legal provisions, operating generally and
impartially."
In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance which made it
unlawful for any person, society or club, or association of any kind, to parade any of the streets, with flags, banners, or
transparencies, drums, horns, or other musical instruments, without the permission of the city council first had and
obtained. The appellants were members of the Salvation Army, and were prosecuted for a violation of the ordinance,
and the court in holding the ordinance invalid said, "Ordinances to be valid must be reasonable; they must not be
oppressive; they must be fair and impartial; they must not be so framed as to allow their enforcement to rest on
official discretion ... Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship
accordingto the dictates of one's conscience, and the right to parade in a peaceable manner and for a lawful purpose,
have been fostered and regarded as among the fundamental rights of a free people. The spirit of our free institutions
allows great latitude in public parades and emonstrations whether religious or political ... If this ordinance is held
valid, then may the city council shut off the parades of those whose nations do not suit their views and tastes in
politics or religion, and permit like parades of those whose nations do. When men in authority are permitted in their
discretion to exercise power so arbitrary, liberty is subverted, and the spirit of of our free institutions violated. ...
Where the granting of the permit is left to the unregulated discretion of a small body of city eldermen, the ordinance
cannot be other than partial and discriminating in its practical operation. The law abhors partiality and discrimination.
... (19 L.R.A., p. 861)
In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of Colorado, in
construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg, which provides: "That it shall
be unlawful for any person or persons or association to use the street of the City of Walsenburg, Colorado for any
parade, procession or assemblage without first obtaining a permit from the Chief of Police of the City of Walsenburg
so to do," held the following:
 "[1] The power of municipalities, under our state law, to regulate the use of public streets is conceded. "35
C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of the United States to use the
streets ... may be regulated in the interest of all; it is not absolute, but relative, and must be excercised in
subordination to the general, be abridged or denied." Hague, Mayor vs. Committee for Industrial
Organization, 307 U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law, ed., 1423.
[2, 3] An excellent statement of the power of a municipality to impose regulations in the use of public streets
is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85 Law, ed. 1049;
133 A.L.R., 1936, in which the following appears; "The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order
upon which they ultimately depend. The control of travel on the streets of cities is the most familiar
illustration of this recognition of social need. Where a restriction of the use of highways in that relation is
designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted
excercise of some civil right which in other circumstances would be entitled to protection. One would not be
justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the
municipal command or sought by that means to direct public attention to an announcement of his opinions. As
regulation of the use of the streets for parades and processions is a traditional excercise of control by local
government, the question in a particular case is whether that control is exerted so as not to deny or
unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the
discussion of public questions immemorially associated with resort to public places. Lovell vs. Criffin, 303
U.S., 444, 451;58 S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization,
307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437]; Scheneider vs. State of
New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell vs.
Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R.
1352."
[4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the uncontrolled official
discretion of the chief of police of the municipal corporation to say who shall, who shall not, be accorded the
privilege of parading on its public streets. No standard of regulation is even remotely suggested. Moreover,
under the ordinance as drawn, the chief of police may for any reason which he may entertain arbitrarily deny
this privelege to any group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:
"In the instant case the uncontrolled official suppression of the privilege of using the public streets in a lawful
manner clearly is apparent from the face of the ordinance before us, and we therefore hold it null and void."
The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515,
516; 83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of a permit for a public assembly
in or upon the public streets, highways, public parks, or public buildings of the city and authorizing the director of
public safety, for the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a permit
when after investigation of all the facts and circumstances pertinent to the application he believes it to be proper to
refuse to issue a permit, is not a valid exercise of the police power. Said Court in the course of its opinion in support
of the conclusion said:
". . . Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of
the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on national questions may be regulated
in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general
comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.
"We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. It does not
make comfort or convenience in the use of streets or parks the standard of official action. It enables the
Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or
disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of
free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such
 eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to
maintain order in connection with the exercise of the right."
Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides that the Mayor
shall have the power to grant and refuse municipal licenses or permits of all classes, cannot be cited as an authority for
the Mayor to deny the application of the petitioner, for the simple reason that said general power is predicated upon
the ordinances enacted by the Municipal Board requiring licenses or permits to be issued by the Mayor, such as those
found in Chapters 40 to 87 of the Revised Ordinances of the City of Manila. It is not a specific or substantive power
independent from the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434. Moreover "one of the settled maxims in constitutional law is that the
power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or
authority," except certain powers of local government, specially of police regulation which are conferred upon the
legislative body of a municipal corporation. Taking this into consideration, and that the police power to regulate the
use of streets and other public places has been delegated or rather conferred by the Legislature upon the Municipal
Board of the City (section 2444 [u] of the Administrative Code) it is to be presumed that the Legislature has not, in the
same breath, conferred upon the Mayor in section 2434 (m) the same power, specially if we take into account that its
exercise may be in conflict with the exercise of the same power by the Municipal Board.
Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred, upon the Mayor
the power to grant or refuse licenses and permits of all classes, independent from ordinances enacted by the Municipal
Board on the matter, and the provisions of section 2444 (u) of the same Code and of section 1119 of the Revised
Ordinances to the contrary notwithstanding, such grant of unregulated and unlimited power to grant or refuse a permit
for the use of streets and other public places for processions, parades, or meetings, would be null and void, for the
same reasons stated in the decisions in the cases above quoted, specially in Willis Cox vs. New Hampshire, supra,
wherein the question involved was also the validity of a similar statute of New Hamsphire. Because the same
constitutional limitations applicable to ordinances apply to statutes, and the same objections to a municipal ordinance
which grants unrestrained discretion upon a city officer are applicable to a law or statute that confers unlimited power
to any officer either of the municipal or state governments. Under our democratic system of government no such
unlimited power may be validly granted to any officer of the government, except perhaps in cases of national
emergency. As stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the council is vested is a
legal discretion to be exercised within the limits of the law, and not a discretion to transcend it or to confer upon any
city officer an arbitrary authority making in its exercise a petty tyrant."
It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code apparently in
support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but evidently the quotation of said
provision was made by the writer of the decision under a mistaken conception of its purview and is an obiter dictum,
for it was not necessary for the decision rendered. The popular meeting or assemblage intended to be held therein by
the Communist Party of the Philippines was clearly an unlawful one, and therefore the Mayor of the City of Manila
had no power to grant the permit applied for. On the contrary, had the meeting been held, it was his duty to have the
promoters thereof prosecuted for violation of section 844, which is punishable as misdemeanor by section 1262 of the
Revised Ordinances of the City of Manila. For, according to the decision, "the doctrine and principles advocated and
urged in the Constitution and by-laws of the said Communist Party of the Philippines, and the speeches uttered,
delivered, and made by its members in the public meetings or gatherings, as above stated, are highly seditious, in that
they suggest and incite rebelious conspiracies and disturb and obstruct the lawful authorities in their duty."
The reason alleged by the respondent in his defense for refusing the permit is, "that there is a reasonable ground to
believe, basing upon previous utterances and upon the fact that passions, specially on the part of the losing groups,
remains bitter and high, that similar speeches will be delivered tending to undermine the faith and confidence of the
people in their government, and in the duly constituted authorities, which might threaten breaches of the peace and a
disruption of public order." As the request of the petition was for a permit "to hold a peaceful public meeting," and
there is no denial of that fact or any doubt that it was to be a lawful assemblage, the reason given for the refusal of the
permit can not be given any consideration. As stated in the portion of the decision in Hague vs. Committee on
Industrial Organization, supra, "It does not make comfort and convenience in the use of streets or parks the standard
of official action. It enables the Director of Safety to refuse the permit on his mere opinion that such refusal will
prevent riots, disturbances or disorderly assemblage. It can thus, as the record discloses, be made the instrument of
arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will
undoubtedly 'prevent' such eventualities." To this we may add the following, which we make our own, said by Mr.
Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107:
 "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and
burned women. It is the function of speech to free men from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is
practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must
be reasonable ground to believe that the evil to be prevented is a serious one . . .
"Those who won our independence by revolution were not cowards. They did not fear political change. They
did not exalt order at the cost of liberty. . . .
"Moreover, even imminent danger cannot justify resort to prohibition of these functions essential effective
democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a
measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to a
society. . . . The fact that speech is likely to result in some violence or in destruction of property is not enough
to justify its suppression. There must be the probability of serious injury to the state. Among freemen, the
deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law,
not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S. Sup. Ct. Rep., 71
Law., ed., pp. 1106-1107.)
In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable objection to the
use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is ordered to issue the corresponding
permit, as requested. So ordered.
Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

Separate Opinions
PARAS, J., concurring:
The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774, section 4, amending section
2434, paragraph (m) of the Revised Administrative Code, the Mayor has discretion to grant or deny the petition to
hold the meeting. (See Evangelista vs. Earnshaw, 57 Phil., 255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422,
426, this Court said:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest
against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule,
will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be
permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an
excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right
to assemble and to petition for redress of grievances would become a delusion and snare and the attempt to
exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took
part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did
not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor."
The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista Party in the House of
Representatives; he was the chief campaigner of the said party in the last elections. As the petition comes from a
responsible party, in contrast to Evangelista's Communist Party which was considered subversive, I believe that the
fear which caused the Mayor to deny it was not well founded and his action was accordingly far from being a sound
exercise of his discretion.

BRIONES, M., conforme:

En nombre del Partido Nacionalista y de los grupos oposicionistas aliados, Cipriano P. Primicias, director general de
campaña de las minorias coaligadas en las ultimas elecciones y "Floor Leader" de dichas minorias en la Camara de
Representantes, solicito del Alcalde de Manila en comunicacion de fecha 14 de Noviembre, 1947, permiso "para
celebrar un mitin publico en la Plaza Miranda el Domingo, 16 de Noviembre, 1947, desde las 5:00 p.m. hasta la 1:00
a.m., a fin de pedir al gobierno el remedio de ciertos agravios." Tambien se pedia en la comunicacion licencia para
usar la plataforma ya levantada en dicha Plaza.
El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso tanto para la celebracion
del mitin como para el uso de la plataforma, "en la inteligencia de que no se pronunciaran discursos subversivos, y
ademas, de que usted (el solicitante) sera responsable del mantenimiento de la paz y orden durante la celebracion del
mitin."
Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano E. Fugoso revoco el permiso concedido,
expresandose los motivos de la revocacion en su carta de tal fecha dirigida al Rep. Primicias.
"Sirvase dar por informado — dice el Alcalde Fugoso en su carta — que despues de haber leido los
periodicos metropolitanos da esta mañana en que aparece que vuestro mitin va a ser un 'rally' de indignacion
en donde se denunciaran ante el pueblo los supuestos fraudes electorales perpetrados en varias partes de
Filipinas para anular la voluntad popular, por la presente se revoca dicho permiso.
"Se cree — añade el Alcalde — que la paz y el orden en Manila sufriran daño en dicho 'rally' considerando
que las pasiones todavia no se han calmado y la tension sigue alta como resultado de la ultima contienda
politica.
"Segun los mismos periodicos, delegados venidos de provincias y estudiantes de las universidades locales
participaran en el 'rally,' lo cual, a mi juicio, no haria mas que causar disturbios, pues no se puede asegurar
que concurriran alli solamente elementos de la oposicion. Desde el momento en que se mezclen entre la
multitud gentes de diferentes matices politicos, que es lo que probablemente va a ocurrir, el orden queda en
peligro una vez que al publico se le excite, como creo que sera excitado, teniendo en cuenta los fines del mitin
tal como han sido anunciados en los periodicos mencionados.
"Se dice que los resultados de las ultimas elecciones seran protestados. No hay base para este proceder toda
vez que los resultados todavia no han sido oficialmente anunciados.
"Por tanto — termina el Alcalde su orden revocatoria — la accion de esta oficina se toma en interes del orden
publico y para prevenir la perturbacion de la paz en Manila."
De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que expida inmediatamente el
permiso solicitado. Se pide tambien que ordenemos al Procurador General para que investigue la fase criminal del
caso y formule la accion que justifiquen las circunstancias.
Dada la premura del asunto, se llamo inmediatamente a vista arguyendo extensamente los abogados de ambas partes
ante esta Corte en sus informes orales.1
El recurso se funda, respecto de su aspecto civil, en el articulo III, seccion 1, inciso 8 de la Constitucion de Filipinas,
el cual preceptua "que no se aprobara ninguna ley que coarte la libertad de la palabra, o de la prensa, o el derecho del
pueblo de reunirse pacificamente y dirigir petiticiones al gobierno para remedio de sus agravios." Con respecto al
posible aspecto criminal del caso se invoca el articulo 131 del Codigo Penal Revisado, el cual dispone que "la pena de
prision correccional en su periodo minimo, se impondra al funcionario publico o empleado que, sin fundamento legal,
prohibiere o interrumpiere una reunion pacifica, o disolviere la misma."
La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten como guardian legal de las
plazas, calles y demas lugares publicos. Se alega que como Alcalde de la Ciudad de Manila tiene plena discrecion para
conceder o denegar el uso de la Plaza Miranda, que es una plaza publica, para la celebracion de un mitin o reunion, de
conformidad con las exigencias del interes general tal como el las interpreta. Especificamente se citan dos
disposiciones, a saber: el articulo 2434 (b), inciso (m) del Codigo Administrativo Revisado, y el articulo 1119,
capitulo 118 de la Compilacion de las Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El articulo
aludido del Codigo Administrativo Revisado se lee como sigue:
xxx xxx xxx
"(m) To grant and refuse municipal license or permits of all classes and to revoke the same for violation of the
conditions upon which they were granted, or if acts prohibited by law or municipal ordinance are being
committed under the protection of such licenses or in the premises in which the business for which the same
have been granted is carried on, or for any other good reason of general interest." La ordenanza municipal
indicada reza lo siguiente:
La ordenanza municipal indicada reza lo siguiente:
"SEC. 1119. Free for use of public. — The streets and public places of the city shall be kept free and clear for
the use of the public, and the sidewalks and crossings for the pedestrians, and the same shall only be used or
occupied for other purposes as provided by the ordinance or regulation: Provided, That the holding of athletic
games, sports, or exercises during the celebration of national holidays in any streets or public places of the
city and on the patron saint day of any district in question, may be permitted by means of a permit issued by
the Mayor, who shall determine the streets or public places, or portions thereof, where such athletic games,
sports, or exercises may be held: And provided, further, That the holding of any parade or procession in any
streets or public places is prohibited unless a permit therefor is first secured from the Mayor, who shall, on
every occasion, determine or specify the streets or public places for the formation, route, and dismissal of
such parade or procession: And provided, finally, That all applications to hold a parade or procession shall be
submitted to the Mayor not less than twenty-four hours prior to the holding of such parade or procession."
Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de indignacion de que habla el Alcalde recurrido
en su carta revocando el permiso ya concedido no consta en la peticion del recurrente ni en ningun documenmento o
manifestacion verbal atribuida al mismo, sino solamente en las columnas informativas de la prensa metropolitana. El
recurrente admite, sin embargo, que el objeto del mitin era comunicar al pueblo la infinidad de telegramas y
comunicaciones que como jefe de campaña de las oposiciones habia recibido de varias partes del archipielago
denunciando tremendas anomalias, escandalosos fraudes, actos vandalicos de terrorismo politico, etc., etc., ocurridos
en las elecciones de 11 de Noviembre; llamar la atencion del Gobierno hacia tales anomalias y abusos; y pedir su
pronta, eficaz y honrada intervencion para evitar lo que todavia se podia evitar, y con relacion a los hechos
consumados urgir la pronta persecucion y castigo inmediato de los culpables y malhechores. De esto resulta evidente
que el objeto del mitin era completamente pacifico, absolutamente legal. No hay ni la menor insinuacion de que el
recurrente y los partidos oposicionistas coaligados que representa tuvieran el proposito de utilizar el mitin para
derribar violentamente al presente gobierno, o provocar una rebelion o siquiera un motin. En realidad, teniendo en
cuenta las serias responsabilidades del recurrente como jefe de campaña electoral de las minorias aliadas y como
"Floor Leader" en el Congreso de dichas minorias, parecia que esta consideracion debia pesar decisivamente en favor
de la presuncion de que el mitin seria una asamblea pacifica, de ciudadanos conscientes, responsables y amantes de la
ley y del orden.2
Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las Ordenanzas Revisadas de Manila
no figura el mitin entre las materias reglamentadas, sino solo la procesion o parada por las calles. Esto demuestra, se
sostiene, que cuando se trata de un mitin en una plaza o lugar publico, la concesion del permiso es ineludible y el
Alcalde no tiene ninguna facultad discrecional. Pareceme, sin embargo, que no es necesario llegar a este extremo.
Creo no debe haber inconveniente en admitir que el mitin esta incluido en la reglamentacion, por razones de
conveniencia publica. Verbigracia, es perfectamente licito denegar el permiso para celebrar un mitin en una plaza
publica en un dia y una hora determinados cuando ya previamente se ha concedido de buena fe el uso del mismo lugar
a otro a la misma hora. La prevencion de esta clase de conflictos es precisamente uno de los ingredientes que entran
en la motivacion de la facultad reguladora del Estado o del municipio con relacion al uso de calles, plazas y demas
lugares publicos. Por ejemplo, es tambien perfectamente licito condicionar el permiso atendiendo a su relacion con el
movimiento general del trafico tanto de peatones como de vehiculos. Estas consideraciones de comfort y conveniencia
publica son por lo regular la base, el leit-motif de toda ley u ordenanza encaminada a reglamentar el uso de parques,
plazas y calles. Desde luego que la regla no excluye la consideracion a veces de la paz y del buen orden, pero mas
adelante veremos que este ultimo, para que sea atendible, requiere que exista una situacion de peligro verdadero,
positivo, real, claro, inminente y substancial. La simple conjetura, la mera aprension, el temor mas o menos exagerado
de que el mitin, asamblea o reunion pueda ser motivo de desorden o perturbacion de la paz no es motivo bastante para
denegar el permiso, pues el derecho constitucional de reunirse pacificamente, ya para que los ciudadanos discutan los
asuntos publicos o se comuniquen entre si su pensamiento sobre ellos, ya para ejecer el derecho de peticion recabando
del gobierno el remedio a ciertos agravios, es infinitamente superior a toda facultad reguladora en relacion con el uso
de los parques, plazas y calles.
La cuestion, por tanto, que tenemos que resolver en el presente recurso es bien sencilla. ¿Tenia razon el Alcalde
recurrido para denegar el permiso solicitado por el recurrente, ora bajo los terminos de la ordenanza pertinente, ora
bajo la carta organica de Manila, y sobre todo, bajo el precepto categorico, terminante, expresado en el inciso 8,
seccion 1, del Articulo III de la Constitucion? ¿No constituye la denegacion del permiso una seria conculcacion de
ciertos privilegios fundamentales garantizados por la Constitucion al ciudadano y al pueblo?
Resulta evidente, de autos, que el recurrido denego el permiso bajo lo que el mismo llama "all-pervading power of the
state to regulate," temiendo que el mitin solicitado iba a poner en peligro la paz y el orden publico en Manila. No se
fundo la denegacion en razones de "comfort" o conveniencia publica, vgr., para no estorbar el trafico, o para prevenir
un conflicto con otro mitin ya previamente solicitado y concedido, sino en una simple conjetura, en un mero temor o
aprension — la aprension de que, dado el tremendo hervor de los animos resultante de una lucha electoral harto reñida
y apasionada, un discurso violento, una arenga incendiaria podria amotinar a la gente y provocar serios desordenes. La
cuestion en orden es la siguiente: ¿se puede anular o siquiera poner en suspenso el derecho fundamentalisimo de
reunion o asamblea pacifica, garantizado por la Constitucion, por razon de esta clase de conjetura, temor o aprension?
Es obvio que la contestacion tiene que ser decididamente negativa. Elevar tales motivos a la categoria de razon legal
equivaldria practicamente a sancionar o legitimar cualquier pretexto, a colocar los privilegios y garantias
constitucionales a merced del capricho y de la arbitrariedad. Si la vigencia de tales privilegios y garantias hubiera de
depender de las suspicacias, temores, aprensiones, o hasta humor del gobernante, uno podria facilmente imaginar los
resultados desastrosos de semejante proposicion; un partido mayoritario dirigido por caudillos y liders sin escrupulos
y sin conciencia podria facilmente anular todas las libertades, atropellar todos los derechos incluso los mas sagrados,
ahogar todo movimiento legitimo de protesta o peticion, estrangular, en una palabra, a las minorias, las cuales —
como sabe todo estudiante de ciencia politica — en el juego y equilibrio de fuerzas que integran el sistema
democratico son tan indispensables como las mayorias. ¿Que es lo que todavia podria detener a un partido o a un
hombre que estuviera en el poder y que no quisiera oir nada desagradable de sus adversarios si se le dejara abiertas las
puertas para que, invocando probables peligros o amagos de peligro, pudiera de una sola plumada o de un solo gesto
de repulsa anular o poner en suspenso los privilegios y garantias constitucionales? ¿No seria esto retornar a los dias de
aquel famoso Rey que dijo: "El Estado soy yo," o de aquel notorio cabecilla politico de uno de los Estados del Sur de
America que asombro al resto de su pais con este nefasto pronunciamiento: "I am the only Constitution around here"?
Es inconcebible que la facultad de reglamentar o el llamado poder de policia deba interpretarse en el sentido de
justificar y autorizar la anulacion de un derecho, privilegio o garantia constitucional. Sin embargo, tal seria el
resultado si en nombre de un concepto tan vago y tan elastico como es el "interes general" se permitiera in terdecir la
libertad de la palabra, de la cual los derechos de reunion y de peticion son nada mas que complemento logico y
necesario. Una mujer famosa de Francia 3 en la epoca del terror, momentos antes de subir al cadalso y colocar su
hermoso cuello bajo la cuchilla de la guillotina, hizo historica esta exclamacion: "¡Libertad, cuantos crimenes se
cometen en tu nombre!" Si se denegara el presente recurso legitimando la accion del recurrido y consiguientemente
autorizando la supresion de los mitines so pretexto de que la paz y el orden publico corren peligro con ellos, un
desengañado de la democracia en nuestro pais acaso exprese entonces su suprema desilusion parafraseando la
historica exclamacion de la siguiente manera: "¡Interes general, paz, orden publico, cuantos atentados se cometen en
vuestro nombre contra la libertad!"
El consenso general de las autoridades en los paises constitucionalmente regidos como Filipinas, particularmente en
Estados Unidos, es que el privilegio del ciudadano de usar los parques, plazas y calles para el intercambio de
impresiones y puntos de vista sobre cuestiones nacionales si bien es absoluto es tambien relativo en el sentido de que
se puede regular, pero jamas se puede denegar o coartar so pretexto o a guisa de regulacion (Hague vs. Committee for
Industrial Organization, 307 U. S., 515-517). Este asunto, planteado y decidido en 1938, ha venido a ser clasico en la
jurisprudencia americana sobre casos del mismo tipo que el que nos ocupa. La formidable asociacion obrera
Committee for Industrial Organization conocida mas popularmente por la famosa abreviatura CIO, planteo una queja
ante los tribunales de New Jersey contra las autoridades de Jersey City, (a) atacando, por fundamentos
constitucionales, la validez de una ordenanza municipal que regulaba y restringia el derecho de reunion; y (b)
tachando de inconstitucionales los metodos y medios en virtud de los cuales ponian en vigor la ordenanza las referidas
autoridades.
Los hechos del caso, brevemente expuestos, son, a saber: La CIO trataba de celebrar mitines y asambleas publicas en
Jersey City a fin de comunicar a los ciudadanos sus puntos de vista sobre la "National Labor Relations Act." Las
autoridades de la ciudad, comenzando por el Alcalde Hague el famoso cabecilla de la muy notoria maquina politica de
New Jersey, rehusaron consistentemente conceder licencia para dichos mitines bajo la especiosa alegacion de que los
miembros de la organizacion obrera solicitante eran comunistas y del orden publico corria peligro de grave
perturbacion; es decir, casi, casi la misma alegacion que en el presente caso. La denegacion de la licencia se fundaba
en una ordenanza municipal que trataba de reglamentar el derecho constitucional de reunion y asamblea pacifica.
Los tribunales de New Jersey, declarando inconstitucionales la ordenanza en cuestion y los metodos por los cuales se
trataba de poner en vigor, sentenciaron a favor de la CIO permitiendole celebrar los mitines solicitados. Elevado el
asunto en casacion e la Corte Suprema Federal, esta confirmo la sentencia con solo una ligera modificacion. Entre
otros pronunciamientos se dijo que: (a) donde quiera este alojado el titulo sobre las calles, parques y plazas, desde
tiempo inmemorial los mismos siempre se han considerado como un fideicomiso para uso del publico, y desde
tiempos remotos que la memoria no alcanza se han usado siempre para fines de reunion y de intercambio de
impresiones y puntos de vista entre los ciudadanos, asi como para la libre discusion de los asuntos publicos; (b) que el
uso de las calles y plazas publicas para tales fines ha sido siempre, desde la antiguedad, una parte importante y
esencial de los privilegios, inmunidades, derechos y libertades de los ciudadanos; (c) que el privilegio del ciudadano
de los Estados Unidos de usar las calles, plazas y parques para la comunicacion de impresiones y puntos de vista sobre
cuestiones nacionales puede ser regulado en interes de todos; es en tal sentido absoluto pero relativo, y debe ser
ejercitado con sujecion al "comfort" y conveniencia generales y en consonancia con la paz y el buen orden; pero no
puede ser coartado o denegado so pretexto y forma de regulacion; (d) que el tribunal inferior estuvo acertado al
declarar invalida la ordenanza en su faz, pues no hace del "comfort" o conveniencia en el uso de calles y plazas la
norma y patron de la accion official; por el contrario, faculta al Director de Seguridad a rehusar el permiso en virtud
de su simple opinion de que la denegacion es para prevenir motines, trastornos o reuniones turbulentas y
desordenadas; (e) que, de esta manera, y conforme lo demuestra el record, la denegacion puede ser utilizada como
instrumento para la supresion arbitraria de la libre expression de opiniones sobre asuntos nacionales, pues la
prohibicion de hablar producira indudablemente tal efecto: (f) y, por ultimo, que no puede echarse mano de la
supresion official del privilegio para ahorrarse el trabajo y el deber de mantener el orden en relacion con el ejercicio
del derecho. En otras palabras, traduciendo literalmente la fraseologia de la sentencia, aun a riesgo de incurrir en un
anglicismo, "no puede hacerse de la supresion official incontrolada del privilegio un sustituto del deber de mantener el
orden en relacion con el ejercicio del derecho." He aqui ad verbatim la doctrina:
"5. Regulation of parks and streets. — "Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes
of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the
streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of the citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not in the guise of regulation be abridged or denied. We think the court
below was right in holding the ordinance . . . void upon its face. It does not make comfort or convenience in
the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on
his mere opinion that such refusal will prevent riots, disturbances, or disorderly assemblage. It can thus, as the
record discloses, be made the instrument of arbitrary suppression of free expression of views on national
affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled
official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection
with the exercise of the right." (Hague vs. Committee for Industrial Organization, 307 U. S. 496, 515-516.)
Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra Earnshaw, 57 Jur. Fil., 255,
como un precedente en apoyo de la accion del Alcalde recurrido. Pero la similitud es solo en el hecho de que el
entonces Alcalde D. Tomas Earnshaw tambien revoco el permiso previamente concedido al partido comunista que
representaba Crisanto Evangelista para celebrar mitines en Manila, pero las circunstancias en ambos casos son
enteramente diferentes. El Alcalde Earnshaw revoco el permiso despues de una minuciosa investigacion en que se
habian encontrado pruebas indubitables no solo de que en los estatutos y documentos del partido comunista se
preconizaba como uno de sus primordiales objetivos el derribar al gobierno americano en Filipinas — gobierno que
ellos calificaban de imperialista y capitalistico — sino que de hecho en mitines celebrados con anterioridad los
comunistas habian pronunciado discursos clara y positivamente sediciosos predicando una abierta rebelion e incitando
un alzamiento para liberar, segun ellos, al proletariado filipino de las garras del imperialismo capitalista. La accion,
por tanto, del Alcalde Earnshaw se fundo no en una simple conjetura, en un mero temor o aprension, sino en la
existencia de un peligro inminente, claro, real, sustantivo — ingrediente unico y excepcionalisimo que permite una
salvedad suspensiva singularisima en el ejercicio de los privilegios constitucionales de que se trata.
¿Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. Ni siquiera se ha hecho la mas pequeña
insinuacion de que las minorias coaligadas en cuyo nombre se ha pedido la celebracion del mitin en cuestion tuvieran
el proposito de derribar al gobierno por metodos y procedimientos violentos. El mismo Fiscal Villamor, en su informe
oral, admitio francamente la legalidad de la coalicion y de sus fines. Podemos tomar conocimiento judicial de que esas
minorias coaligadas lucharon en todas las provincias y municipios de Filipinas presentando candidatos para todos los
cargos — nacionales, provinciales y locales, y de que su candidatura senatorial triunfo en 21 provincias de las 50 que
componen el mapa electoral, y en 5 ciudades con carta especial de las 8 que existen, incluyendose entre dichas 5 la de
Manila, capital del archipielago.
Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta en el caso de Evangelista
contra Earnshaw, sino que por el contrario propugna la balota, no la bala, como el instrumento normal y democratico
para cambiar los gobiernos y las administraciones, lo demuestra, ademas del hecho ya apuntado de que lucho en las
ultimas elecciones prevaliendose de las armas proveidas por la legalidad y sacando partido de los medios de que
disponia frente a la natural superioridad del partido gobernante, lo demuestra, repito, la circunstancia de que despues
de hechas las votaciones y mientras se estaban contando los votos y cuando vio que, segun ella, se habia escamoteado
o se estaba escamoteando la voluntad popular en varias partes mediante engaños, abusos y anomalias de diferentes
clases, no busco la violencia ni recurrio a la accion directa para hallar remedio a sus agravios o vengarlos, sino que
trato de cobijarse bajo la Constitucion reuniendo al pueblo en asamblea magna al aire libre para comunicar y discutir
sus quejas y recabar del gobierno el correspondiente remedio. Y esto lo hizo la coalicion oficialmente, con todas las
rubricas del protocolo, formulando la peticion del mitin el hombre que mejor podia representarla y ofrecer garantias
de legalidad y orden ante los poderes constituidos — el recurrente en este caso, cuya solvencia moral y politica esta
doblemente garantida por su condicion de lider de las minorias en el Congreso y jefe de campaña de las mismas en las
pasadas elecciones. ¿Que mejor prueba de legalidad y de propositos pacificos y ordenados?
Por tanto, las circunstancias han venido a situar al gobierno en una encrucijada: por un lado, el camino angosto de la
represion, de una politica de fuerza y de cordon ferreo policiaco; por otro lado, la amplia avenida de la libertad, una
politica que consista en abrir espitas y valvulas por donde pueda extravasarse no ya la protesta sino inclusive la
indignacion del pueblo, previniendo de esta manera que los vapores mal reprimidos hagan estallar la caldera, o que la
desesperacion lo arrastre a conspirar en la sombra o a confiar su suerte a los azares de una cruenta discordia civil.
Creo que entre ambas politicas la eleccion no es dudosa.
Se alega que antes del 11 de Noviembre, dia de las elecciones, el Alcalde recurrido habia concedido a las minorias
coaligadas permisos para celebrar varios mitines politicos en diferentes sitios de Manila; que en dichos mitines se
habian pronunciado discursos altamente inflamatorios y calumniosos llamandose ladrones y chanchulleros a varios
funcionarios del gobierno nacional y de la Ciudad de Manila, entre ellos el Presidente de Filipinas, el Presidente del
Senado y el mismo recurrido, suscitandose contra ellos la animadversion y el desprecio del pueblo mediante la
acusacion de que han estado malversando propiedades y fondos publicos con grave detrimento del bienestar e interes
generales; que, dado este antecedente, habia motivo razonable para creer que semejantes discursos se pronunciarian de
nuevo, minandose de tal manera la fe y la confianza del pueblo en su gobierno y exponiendose consiguientemente la
paz y el orden a serias perturbaciones, teniendo en cuenta la temperatura elevadisima de las pasiones, sobre todo de
parte de los grupos perdidosos y derrotados.
Estas alegaciones son evidentemente insostenibles. Darles valor equivaldria a instituir aqui un regimen de previa
censura, el cual no solo es extraño sino que es enteramente repulsivo e incompatible con nuestro sistema de gobierno.
Nuestro sistema, mas que de prevencion, es de represion y castigo sobre la base de los hechos consumados. En otras
palabras, es un sistema que permite el amplio juego de la libertad, exigiendo, sin embargo, estricta cuenta al que
abusase de ella. Este es el espiritu que informa nuestras leyes que castigan criminalmente la calumnia, la difamacion
oral y escrita, y otros delitos semejantes. Y parafraseando lo dicho en el citado asunto de Hague vs. Committee for
Industrial Organization, la supresion incontrolada del privilegio constitucional no puede utilizarse como sustituto de la
operacion de dichas leyes.
Se temia — dice el recurrido en su contestacion — que la probable virulencia de los discursos y la fuerte tension de
los animos pudiesen alterar seriamente la paz y el orden publico. Pero — cabe preguntar — ¿de cuando aca la libertad,
la democracia no ha sido un peligro, y un peligro perpetuo? En realidad, de todas las formas de gobierno la
democracia no solo es la mas dificil y compleja, sino que es la mas peligrosa. Rizal tiene en uno de sus libros
inmortales una hermosa imagen que es perfectamente aplicable a la democracia. Puede decirse que esta es como la
mar: serena, inmovil, sin siquiera ningun rizo que arrugue su superficie, cuando no lo agita ningun viento. Pero
cuando sopla el huracan — lease, Vientos de la Libertad — sus aguas se alborotan, sus olas se encrespan, y entonces
resulta horrible, espantosa, con la espantabilidad de las fuerzas elementales que se desencadenan liberrimamente.
¿Ha dejado, sin embargo, el hombre de cruzar los mares tan solo porque pueden encresparse y enfurecerse a veces?
Pues bien; lo mismo puede decirse de la democracia: hay que tomarla con todos sus inconvenientes, con todos sus
peligros. Los que temen la libertad no merecen vivirla. La democracia no es para pusilanimes. Menos cuando de la
pusilanimidad se hace pretexto para imponer un regimen de fuerza fundado en el miedo. Porque entonces el
absolutismo se disfraza bajo la careta odiosa de la hipocresia. Ejemplo: los Zares de Rusia. Y ya se sabe como
terminaron.
El Magistrado Sr. Carson describio con mano maestra los peligros de la libertad y democracia y previno el temor a
ellos con las luminosas observaciones que se transcriben a continuacion, expuestas en la causa de Estados Unidos
contra Apurado, 7 Fur. Fil., 440 (1907), a saber:
"Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para protestar contra
agravios ya sean reales o imaginarios porque en esos casos los animos siempre estan excesivamente
exaltados, y mientras mayor sea el agravio y mas intenso el resentimiento, tanto menos perfecto sera por regla
general el control disciplinario de los directores sobre sus secuaces irresponsables. Pero si se permitiese al
ministerio fiscal agarrarse de cada acto aislado de desorden cometido por individuos o miembros de una
multitud como pretexto para caracterizar la reunion como un levantamiento sedicioso y tumultuoso contra las
autoridades, entonces el derecho de asociacion, y de pedir reparacion de agravios seria completamente
ilusorio, y el ejercicio de ese derecho en la ocasion mas propia y en la forma mas pacifica expondria a todos
los que tomaron parte en ella, al mas severo e inmerecido castigo si los fines que perseguian no fueron del
agrado de los representantes del ministerio fiscal. Si en tales asociaciones ocurren casos de desorden debe
averiguarse quienes son los culpables y castigarseles por este motivo, pero debe procederse con la mayor
discrecion al trazar la linea divisoria entre el desorden y la sedicion, y entre la reunion esencialmente pacifica
y un levantamiento tumultuoso."
En el curso de los informes se pregunto al Fiscal, defensor del recurrido, si con motivo de los discursos que se dicen
calumniosos y difamatorios pronunciados en los mitines de la oposicion antes de las elecciones ocurrio algun serio
desorden: la contestacion fue negativa. Como se dice mas arriba, en el mitin monstruo que despues se celebro en
virtud de nuestra decision en el presente asunto tampoco ocurrio nada. ¿Que demuestra esto? Que los temores eran
exagerados, por no llamarlos fantasticos; que el pueblo de Manila, con su cordura, tolerancia y amplitud de criterio,
probo ser superior a las aprensiones, temores y suspicacias de sus gobernantes.
La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las garantias constitucionales
sobre la libertad de la palabra y los derechos concomitantes — el de reunion y peticion. Se trata de derechos
demasiado sagrados, harto metidos en el corazon y alma de nuestro pueblo para ser tratados negligentemente, con un
simple encogimiento de hombros. Fueron esas libertades las que inspiraron a nuestros antepasados en sus luchas
contra la opresion y el despotismo. Fueron esas libertades la base del programa politico de los laborantes precursores
del '96. Fueron esas libertades las que cristalizaron en la carta organizacional de Bonifacio, generando luego el famoso
Grito de Balintawak. Fueron esas libertades las que despues informaron los documentos politicos de Mabini y la
celebre Constitucion de Malolos. Y luego, durante cerca de medio siglo de colaboracion filipino — americana, fueron
esas mismas libertades la esencia de nuestras instituciones, la espina dorsal del regimen constitucional y practicamente
republicano aqui establecido. Nada mejor, creo yo, para historiar el proceso de esas libertades que los atinados y
elocuentes pronunciamientos del Magistrado Sr. Malcolm en la causa de Estados Unidos contra Bustos, 37 Jur. Fil.,
764 (1918). Es dificil mejorarlos; asi que opto por transcribirlos ad verbatim a continuacion:
"Hojeando las paginas de la historia, no decimos nada nuevo al afirmar que la libertad de la palabra, tal y
como la han defendido siempre todos los paises democraticos, era desconocida en las Islas Filipinas antes de
1900. Por tanto, existia latente la principal causa de la revolucion. Jose Rizal en su obra 'Filipinas Dentro de
Cien Años' (paginas 62 y siguientes) describiendo 'las reformas sine quibus non,' en que insistian los filipinos,
dijo:
"El ministro, . . . que quiera que sus reformas sean reformas, debe principiar por declarar la prensa libre en
Filipinas, y por crear diputados filipinos.
"Los patriotas filipinos que estaban en España, por medio de las columnas de La Solidaridad y por otros
medios, al exponer los deseos del Pueblo Filipino, pidieron invariablemente la 'libertad de prensa, de cultos y
de asociacion.' (Vease Mabini, 'La Revolucion Filipina.') La Constitucion de Malolos, obra del Congreso
Revolucionario, en su Bill de Derechos, garantizaba celosamente la libertad de la palabra y de la prensa y los
derechos de reunion y de peticion.
"Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una reforma tan sagrada
para el pueblo de estas Islas y a tan alto precio conseguida, debe ampararse ahora y llevarse adelante en la
misma forma en que se protegeria y defenderia el derecho a la libertad.
 "Despues sigue el periodo de la mutua colaboracion americano-filipina. La Constitucion de los Estados
Unidos y las de los diversos Estados de la Union garantizan el derecho de la libertad y de la palabra y de la
prensa y los derechos de reunion y de peticion. Por lo tanto, no nos sorprende encontrar consignadas en la
Carta Magna de la Libertad Filipina del Presidente McKinley, sus Instrucciones a la Segunda Comision de
Filipinas, de 7 de abril de 1900, que sientan el siguiente inviolable principio:
"Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los derechos del
pueblo para reunirse pacificamente y dirigir peticiones al Gobierno para remedio de sus agravios."
"El Bill de Filipinas, o sea la Ley del Congreso de 1.° de Julio de 1902, y la Ley Jones, o sea la Ley del
Congreso de 29 de Agosto de 1916, que por su naturaleza son leyes organicas de las Islas Filipinas, siguen
otorgando esta garantia. Las palabras entre comillas no son extrañas para los estudiantes de derecho
constitucional, porque estan calcadas de la Primera Enmienda a la Constitucion de los Estados Unidos que el
pueblo americano pidio antes de otorgar su aprobacion a la Constitucion.
"Mencionamos los hechos expuestos tan solo para deducir la afirmacion, que no debe olvidarse por un solo
instante, de que las mencionadas garantias constituyen parte integrante de la Ley Organica — La Constitucion
— de las Islas Filipinas.
"Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera palabreria. Las
palabras que alli se emplean llevan consigo toda la jurisprudencia que es de aplicacion a los grandes casos
constitucionales de Inglaterra y America. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1917],
214 U. S., 470.) Y ¿cuales son estos principios? Volumen tras volumen no bastaria a dar una contestacion
adecuada. Pero entre aquellos estan los siguientes:
"Los intereses de la sociedad y la conservacion de un buen gobierno requieren una discusion plena de los
asuntos publicos. Completa libertad de comentar los actos de los funcionarios publicos viene a ser un
escalpelo cuando se trata de la libertad de la palabra. La penetrante incision de la tinta libra a la burocracia del
absceso. Los hombres que se dedican a la vida publica podran ser victimas de una acusacion injusta y hostil;
pero podra calmarse la herida con el balsamo que proporciona una conciencia tranquila. El funcionario
publico no debe ser demasiado quisquilloso con respecto a los comentarios de sus actos oficiales. Tan solo en
esta forma puede exaltarse la mente y la dignidad de los individuos. Desde luego que la critica no debe
autorizar la difamacion. Con todo, como el individuo es menos que el Estado, debe esperarse que sobrelleve
la critica en beneficio de la comunidad. Elevandose a mayor altura que todos los funcionarios o clases de
funcionarios, que el Jefe Ejecutivo, que la Legislatura, que el Poder Judicial — que cualesquiera o sobre todas
las dependencias del Gobierno — la opinion publica debe ser el constante manantial de la libertad y de la
democracia. (Veanse los casos perfectamente estudiados de Wason vs. Walter, L. R. 4 Q. B., 73, Seymour vs.
Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1.)
Ahora que ya somos independientes es obvio que la republica no solo no ha de ser menos celosa que la antigua
colonia en la tenencia y conservacion de esas libertades, sino que, por el contrario, tiene que ser muchisimo mas activa
y militante. Obrar de otra manera seria como borrar de una plumada nuestras mas preciosas conquistas en las jornadas
mas brillantes de nuestra historia. Seria como renegar de lo mejor de nuestro pasado: Rizal; Marcelo H. del Pilar,
Bonifacio, Mabini, Quezon, y otros padres inmortales de la patria. Seria, en una palabra, como si de un golpe
catastrofico se echara abajo la recia fabrica de la democracia filipina que tanta sangre y tantos sacrificios ha costado a
nuestro pueblo, y en su lugar se erigiera el tinglado de una dictadura de opera bufa, al amparo de caciquillos y
despotillas que pondrian en ridiculo el pais ante el mundo . . . Es evidente que no hemos llegado a estas alturas, en la
trabajosa ascension hacia la cumbre de nuestros destinos, para permitir que ocurra esa tragedia.
No nos compete determinar el grado de certeza de los fraudes e irregularidades electorales que la coalicion minoritaria
trataba de airear en el mitin en cuestion con vistas a recabar del gobierno y del pueblo el propio y correspondiente
remedio. Pudieran ser reales o pudieran ser imaginarios, en todo o en parte. Pero de una cosa estamos absolutamente
seguros y es que la democracia no puede sobrevivir a menos que este fundada sobre la base de un sufragio efectivo,
sincero, libre, limpio y ordenado. El colegio electoral es el castillo, mejor todavia, el baluarte de la democracia.
Suprimid eso, y la democracia resulta una farsa.
Asi que todo lo que tienda a establecer un sufragio efectivo4 no solo no debe ser reprimido, sino que debe ser
alentado. Y para esto, en general para la salud de la republica, no hay mejor profilaxis, no hay mejor higiene que la
critica libre, la censura desembarazada. Solamente se pueden corregir los abusos permitiendo que se denuncien
publicamente sin trabas sin miedo.5 Esta es la mejor manera de asegurar el imperio de la ley por encima de la
violencia.

HILADO, J., dissenting:

Because the constitutional right of assembly and petition for redress of grievances has been here invoked on behalf of
petitioner, it has been considered doubly necessary to expound at length the grounds of my dissent. We are all ardent
advocates of this right, whenever and wherever properly exercisable. But, in considering the legal problem here
presented serenely and dispassionately, as I had to, I arrived at a different conclusion from that of the majority.
(a) Right not absolute but subject to regulation. — It should be recognized that this right is not absolute and is subject
to reasonable regulations. (Philippine Constitutional Law by Malcolm and Laurel, 3d ed., p. 407; Commonwealth vs.
Abrahams, 156 Mass., 57, 30 N.E. 79.)
Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not an absolute one. Assemblies are subject to
reasonable regulations."
In the above cited case of Commonwealth vs. Abrahams, which is cited in support of the text on page 407 of the
above cited work on Philippine Constitutional Law by Malcolm and Laurel, the Supreme Judicial Court of
Massachusetts considered and decided a case involving a regulation by the Board of Park Commissioners forbidding
all persons "to make orations, harangues, or loud outcries" in a certain park, under penalty of $20, except upon prior
consent of the board. The defendant requested permission to deliver an oration in the park, which was refused by the
board, and thereafter entered the park, and delivered an "oration or harangue" about ten or fifteen minutes in length. In
a criminal trial of said defendant for violating the rules promulgated by the Board of Park Commissioners, said rules
were held valid and reasonable, and not inconsistent with article 19 of the Bill of Rights (of the Massachusetts
Constitution), providing that "the people have a right, in an orderly and peaceable manner, to assemble to consult
upon the common good, give instructions to their representatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer." In that
case the defendant admitted that the people would not have the right to assemble for the purposes specified in the
public streets, and might not have such right in the public gardens or on the common, because such an assembly
would or might be inconsistent with the public use for which these places are held. And the Supreme Court of
Massachusetts said:
". . . . The same reasons apply to any particular park. The parks of Boston are designed for the use of the
public generally; and whether the use of any park or a part of any park can be temporarily set aside for the use
of any portion of the public, is for the park commissioners to decide, in the exercise of a wise discretion."
In the above-quoted case it appears from the statement of facts preceding the opinion that within the limits of Franklin
Park, there involved, were large areas not devoted to any special purpose and not having any shrubbery that would be
injured by the gathering thereon of a large concourse of people; that defendant's speech contained nothing
inflammatory or seditious, and was delivered in an ordinary oratorical tone; that at the close of the oration the
audience quietly dispersed; and that no injury of any kind was done to the park. Still, it was held that the regulation
under which the Board of Park Commissioners denied the permission to deliver said oration requested by the
defendant was valid and was not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to
the people the "right, in an orderly and peaceable manner, to assemble to consult upon the common good, give
instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or
remonstrances, redress of the wrongs done them, and of the grievances they suffer."
In the case at bar, the Mayor of Manila had the duty and the power, inter alia, "to grant and refuse municipal . . .
permits of all classes . . . for any (other) good reason of general interest" (Rev. Ad. Code, section 2434 [b]-[m]; italics
ours); and "to comply with and enforce and give the necessary orders for the faithful enforcement and execution of the
laws and ordinances in effect within the jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and among the general
powers and duties of the Municipal Board, whose ordinances the said Mayor was at once bound and empowered to
comply with and enforce, were such as "regulate the use of streets, . . . parks, . . . and other public places." [Ibid.,
section 2444 (u); italics ours.]
Another legal doctrine which should not be lost sight of is that, without abridging the right of assembly and petition,
the government may regulate the use of places — public places — wholly within its control, and that the state or
municipality may require a permit for public gatherings in public parks and that, while people have the right to
assemble peaceably on the highways and to parade on streets, nevertheless the state may regulate the use of the streets
by requiring a permit (16 C. J. S., p. 642). In our government the state, through the Charter of Manila, has conferred
certain powers pertinent to the subject under consideration upon the City Mayor, and upon the Municipal Board.
Among these is the duty and power of said Mayor "to grant and refuse municipal . . . permits of all classes . . . for any
good reason of general interest" (italics ours), and the power and duty of the Municipal Board "to regulate the use . . .
of street, . . . parks, . . . and other public places . . ." (italics ours), already above discussed.
Plaza Miranda in a way is a public square or plaza, and in another sense, in view of its more frequent public use, is a
public place devoted to traffic between several streets which empty into it within the district of Quiapo. It is a fact of
common knowledge and within the judicial notice of this Court that said plaza is one of the public places constantly
used by an usually great number of people during all hours of the day and up to late hours of the night, both for
vehicular and for pedestrian traffic. It is one of the centers of the city where a heavy volume of traffic during those
hours converges and from which it again proceeds in all directions; and the holding during those hours of a meeting,
assembly or rally of the size and nature of that contemplated by petitioner and those belonging to the Coalesced
Minority Parties when the permit in question was requested from the City Mayor, must have been expected to greatly
inconvenience and interfere with the right of the public in general to devote said plaza to the public uses for which it
has been destined since time immemorial.
The rule may perhaps be more aptly stated by saying that the right of peaceful assembly and petition is not absolute
but subject to regulation as regards the time, place, and manner of its exercise. As to time, it seems evident, for
example, that the State, directly or through the local government of the city or municipality, by way of regulation of
the right of free speech, may validly prohibit the delivery of speeches on public streets near private residences
between midnight and dawn. As to place, we have the example of the instant case involving Plaza Miranda or any
other public place. And as to manner, it is a familiar rule that the freedom of speech does not authorize the speaker to
commit slander or defamation, and that laws and ordinances aimed at preventing such abuses are valid regulations of
the right. Among other cases which may be cited on the same point, we have that of Hague vs. Committee on
Industrial Organization, 307 U. S., 496, 83 Law. ed., 1423, cited in the majority opinion and from which the following
passage is copied from the quotation therefrom in the said opinion:
". . . The privilege of a citizen of the United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised
in subordination to the general comfort and convenience, and in consonance with peace and good order; but it
must not, in the guise of regulation, be abridged or denied." (Italics ours.)
I construe this declaration of principles by the United States Supreme Court to imply that where the regulatory action
is predicated upon the "general comfort and convenience," and is "in consonance with peace and good order," as in the
instant case, such action is regulation and not "guise of regulation," and therefore does not abridge or deny the right.
(b) No constitutional right to use public places under government control, for exercise of right of assembly
and petition, etc. —
Indeed, carefully analyzed, the action taken by the City Mayor was not even a regulation of the constitutional right of
assembly and petition, or free speech, claimed by petitioner, but rather of the use of a public place under the exclusive
control of the city government for the exercise of that right. This, I submit, is a distinction which must be clearly
maintained throughout this discussion. No political party or section of our people has any constitutional right to freely
and without government control make use of such a public place as Plaza Miranda, particularly if such use is a
deviation from those for which said public places have been by their nature and purpose immemorially dedicated. In
other words, the City Mayor did not attempt to have anything to do with the holding of the "indignation rally" or the
delivery of speeches thereat on the date desired at any place over which said mayor had no control — his action was
exclusively confined to the regulation of the use of Plaza Miranda for such a purpose and at such a time. Chief Justice
Hughes, speaking for a unanimous court in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:
If a municipality has authority to control the uses of its public streets for parades or processions, as it
undoubtedly has, it can not be denied authority to give consideration, without unfair discrimination, to time,
place, and manner in relation to the other proper uses of the streets. We find it impossible to say that the
limited authority conferred by the licensing provisions of the statute in question as thus construed by the state
court contravened any constituional right. (emphasis ours).
That case was concerened with a prosecution of sixty-eigth "Jehovah's Witnesses" in a municipal court in the State of
New Hampshire for violation of a state statute prohibiting a "parade or procession" upon a public street without a
special license. The appellants invoked the constitutional right of free speech and press, as well as that of the
assembly. The judgment of the municipal court was affirmed by the Supreme Court of New Hampshire and that of the
latter was affirmed by the United States Supreme Court. Among other things, the United States Supreme Court said
that the appellants were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise,
or for issuing invitations to a public meeting, or for holding a public meeting, of for maintaining or expressing
religious beliefs. Their right to do any of these things apart from engaging in a "parade or procession," upon a public
street was not involved in the case. The question of the validity of a statute addressed to any other sort of conduct than
that complained of was declared not to be before the court (85 Law. ed., 1052). By analogy, I may that in the instant
case the constitutional rights of free speech, assmebly, and petition are not before the court but merely the privilege of
petitioner and the Coalesced Minorities to exercise any or all of said rights by using Plaza Miranda, a public place
under the complete control of the city government. In the same case of Cox vs. New Hampshire, supra, Chief Justice
Hughes, in his opinion, used the following eloquent language:.
"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining
public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of
a municipality to impose regulations in order to assure the safety and convenience of the people in the use of
public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities
is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways
in that relation is designed to promote the public convenience in the interest of all, it can not be disregarded
by the attempted exercise of some civil right which in other circumstances would be entitled to protectio. One
would not be justified in ignoring the familiar red lightbecause he thought it his religious duty to disobey the
municipal command or sought by that means to direct public attention to an announcement of his opinion...."
(85 Law. ed., 1052-1053.).
In other words, when the use of public streets or places is involved, public convenience, public safety and public order
take precedence over even particular civil rights. For if the citizen asserting the civil right were to override the right of
the general public to the use of such streets or places, just because it is guaranteed by the constitution, it would be
hard to conceive how upon the same principle that citizen be prevented from using the private property of his
neighbor for the exercise of the asserted right. The constitution, in guaranteeing the right of peaceful assembly and
petition, the right of free speech, etc., does not guarantee their exercise upon public places, any more than upon
private premises, without government regulation in both cases, of the owners' consent in the second..
In Davis vs. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United States Supreme Court, in affirming the
decision of the Supreme Judicial Court of Massachusetts written by Justice Oliver Wendell Holmes, then of the latter
tribunal, quoted from said decision as follows:.
"...As representatives of the public it (legislature) may and does excercise control over the use which the
public may make of such places (public parks and streets), and it may and does delegate more or less of such
control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid
public speaking in a highway or public park is no more an infringement of the rights of the member of the
public than for the owner of a private house to forbid it in his house. When no proprietary right interferes the
legislature may end the right of the public to enter upon the public place by putting an end to the dedication to
public uses. So it may take the lesser step of limiting the public use to certain purposes. See Dill. Mun. Corp.
secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs. vs. Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep.
70)....".
(c) Authorities cited.--.
I have examined the citations of authorities in the majority opinion. Most of the cases therin cited are, I think,
inapplicable to the oune under consideration, and those which may have some application, I believe reinforce this
dissent. None of them was for mandamus to compel the granting of a permit for holding a meeting, assembly or the
like, upon a public place within the control of the general or local government..
The fact that a law or municipal ordinance under which a person had been prosecuted for delivering a speech without
the required permit, for example, was declared unconstitutional or otherwise void for delegating an unfettered or
arbitrary discretion upon the lisencing authority, thus completely failing to confer the discretion, does not mean that
such person has the right by mandamus to force said authority to grant him the permit. If, in such case, the law or
ordinance, conferring the discretion, is unconstitutional or void, the mandamus suit becomes entirely idle. Such a suit
would involve self-contradictory proposition, for the very idea of a permit is something which may be granted or
witheld. He who has the power to grant permission for the doing of an act necessarily has the correlative power to
deny the permission. A "permit" which under no conditions or circumstances and at no time can be refused needs a
different name..
Willis Cox vs. State of New Hampshire, 312 U. S., 569, was concerned with a statute of the State of New Hampshire
which was construed by the Supreme Court of the same State as not conferring upon the licensing board unfettered
discretion to refuse the license, and was held valid both by said Supreme Court and the Supreme Court of the United
States..
In our case, section 2434 (b)-(m) of the Revised Administrative Code does not confer upon the Mayor of Manila an
unfettered discretion to grant or refuse the permit--his power to grant or to refuse the permit is controlled and limited
by the all important requirement of the same section that whatever his determination, it should be "for any good
reason of general interest.".
In City of Chicago vs. Trotter, 136 Ill., 430, the Supreme Court of the State of Illinois held that the power of City
councils under the state law to regulate the use of the public streets could not be delegated by them, and therefore
could not be delegated to the superintendent of police. But in our case, the power of the City Mayor under the Revised
Administrative Code has not been delegated by the Municipal Board of Manila but has been directly conferred by the
State through its legislature. .
In State ex rel. Garrabad vs. Dering, 84 Wis., 585, what was involved was a city ordinance committing to the
unrestrained will of public officer the power to determine the rights of parties under the ordinance without anything
(to guide or control his action.) In our case, as already stated, the city mayor received his power from the State
through the Legislature which enacted the Revised Administrative Code, and moreover, his action therein provided to
be guided and controlled by the already mentioned requirement that whether he grants or refuses a municipal premit
of any class it shall be for some "good reason of general interest," and not as his unfettered will may dictate..
The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared unreasonable and void by the Supreme
Court of Michigan, the ordinance prohibiting certain uses of the public streets of the City of Grand Rapids "without
having first obtained the consent of the Mayor or Common Council of said City." The ordinance did not prescribe any
guide, control or limitation for, of, and to, the exercise of the power thus conferred upon the mayor or common
council. The following passage from the quotation from the decision of the Supreme Court of Michigan made in the
majority opinion would seem to reinforce the stand taken in this dissent..
"...We must therefore construe this Charter and the powers it assumes to grant, so far as it is not plainly
unconstitutional, as only conferring such power over the subjects referred to as will enable the city to keep
order, and suppress mischief, in accordance with the limitations and conditions required by the rights of the
people themselves, as secured by the principles of law, which cannot be less careful of private rights under a
constitution than under the common law..
"It is quite possible that some things have a greater tendency to produce danger and disorder in the cities than
in smaller towns or in rural places. This may justify reasonable precautionary measures, but nothing further;
and no inference can extend beyond the fair scope of powers granted for such a purpose and no grant of
absolute discretion to suppress lawful action altogether can be granted at all...." (emphasis ours.)
The instant case is concerned with an "indignation rally" to be held at one of the busiest and most frequented public
places in this big cosmopolitan city, with a present population estimated to be 150 per cent larger than its prewar
population, and the public officer who was being called upon to act on the petition for permit was the chief executive
of the city who was by reason of his office the officer most directly responsible for the keeping and maintenance of
peace and public order for the common good. And as stated elsewhere in this dissent, his power in the premises was
not without control, limitation or guide and, lastly, the action taken by him was not an absolute suppression of the
right claimed but was merely a postponement of the use of a public place for the excercise of that right when popular
passions should have calmed down and public excitement cooled off sufficiently to better insure the avoidance of
public peace and order being undermined..
Rich vs. Mapervill, 42 Ill. Ap., 222, had to do with another city ordinance. The court there held that when men in
authority are permitted in their discretion to excercise "power so arbitrary , liberty is subverted, and the spirit of our
free institution violated." (Emphasis ours.) This is not our case, as the power of the Manila Mayor now under
consideration is not at all arbitrary. It was further held in that case that where the granting of the permit is left to the
unregulated discretion of a small body of city alderman, th ordinance can not be other than partial and discriminating
in its practical operation. The case at bar is radically different for, as already shown, the discretion of the City Mayor
here is not unregulated, for the phrase "any good reason of general interest" is certainly an effective regulatory
condition precedent to the exercise of the power one way or the other. And just as certainly the reasons alleged by the
respondent Mayor for his action stated in his letters dated November 15 and 17, 1947, addressed to petitioner and in
his affidavit Annex 1, seem entirely well founded and well taken, consideration being had of his grave responsibilities
as the immediate keeper of peace and public order in the city. Elsewhere in this dissent we quote from said documents
textually..
On page 13 of the majority opinion there is aquotation of anothe passage from the case of Cox vs. New
Hampshire, supra, which says:.
"As regualtion of the use of the streets for parades or processions is a traditional exercise of control by local
government, the question in a particular case is whether that control is exerted so as not to deny or
unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the
discussion of public questions immemorially associated with resort to public places.".
The above rule means that if the control exerted does not deny or unwarrantedly abridge the right of assembly, such
control is legally valid. This is precisely our case, since the respondent Mayor neither denied not unwarrantedly
abridged the right asserted by petitioner and his companions. If the postponement of the granting of the permit should
be taken as a denial of the right, then we would practically be denying the discretion of the proper official for it would
be tantamount to compelling him to grant the permit outright, which could necessarily mean that he can never refuse
the permit, for one who cannot even postpone the granting of such permit much less can altogether refuse it. .
Hague vs, Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed., 1423, apart from being clearly
distinguishable from the instant case as later demonstrated, contains the passage quoted on page 7 of this dissent,
which decidedly supports it. The distinction between that case and this is that there "the ordinance deals only with the
exercise of the right of assembly for the purpose of communicating views entertained by speakers, and is not a general
measure to promote the public convenience in the use of the streets or parks" (83 Law. ed., 1436); while in the instant
case section 2434 (b)-(m) of the Revised Administrative Code is not solely aimed at prhibition of any particular act for
it likewise provides permission, and in both cases is expressly aimed at promoting the "general interest." .
Cox vs. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is equally in solid support of this dissent as
appears from No. 2 of the syllabus therein:.
"A statute requiring persons using the public streets for a parade or procession to procure a special license
therefor from the local authorities is not an unconstitutional abridgement 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 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 licenses, but are required to
exercise their discretion free from the improper or inappropriate consideration and from unfair
discrimination." (Emphasis ours.).
In empowering and directing the City Mayor to grant or refuse permits "for any...good reason of general interest," the
Revised Administrative Code plainly has in view only the common good and excludes all "improper or inappropriate
considerations" and "unfair discrimination" in the exercise of the granted discretion.
Lastly, as between Hague vs, Committee fro Industrial Organization, supra, and Cox vs. State of New
Hampshiresupra, the choice is obvious with regard to their authoritative force, when it is considered that in the former
out of the nine Justices of the United States Supreme Court two did not take part and of the seven who dis only two,
Justices Roberts and Black, subscribed the opinion from which the majority here quote, while in the latter (Cox vs.
State of New Hampshire) the decision was unanimous..
(d) Mandamus unavailable.--- .
Mc Quillin on Municipal Cororations, 2nd ed., Revised, Volume 6, p. 848, section 2714, expresses the rule obtaining
in the United States that the immunity from judicial control appertaining to the Office of the Governor of the State, or
to the Presidency of the United States, does not attach to the mayoralty of a city. But on page 878, section 2728, ha
has the following to say on the unavailability of mandamus to compel the granting of licenses and permits by
municipal officers:.
 "SEC. 2728. To compel the granting of licenses and permits.--If the issuance of the license or permit is
discretionary with the officer or municipal board, it is clear that it cannot be compelled by mandamus. The
cases rarely, if ever, depart from this well established rule, and in consequence in doubtful cases the judicial
decisions uniformly disclose a denial of the remedy. As already stated, the fundamental condition is that the
petition must show a clear legal right to the writ and a plain neglect of duty on the part of the public officer to
perform the act sought to be enforced. For example, one who seeks to compel a city to issue to him a permit
for the erection of a buiding must show compliance with all valid requirements of the building ordinances and
regulations..
"The granting of licenses or permits by municipal or other public authorities, as mentioned, is usually
regarded as a discretionary duty, and hence, ordinarily mandamus will not lie to compel them to grant a
license or issue a permit to one claiming to be entitled thereto, especially where it is not alleged and shown
that the exercise of such discretion was arbitrary. All the court can do is to see that the licensing authorities
have proceeded according to law. Their decision will not be reviewed on its merits. Where, however, refusal
to grant a license or to issue a permit, as said above, is arbitrary or capricious mandamus will lie to compel
the appropriate official action...." .
To my mind, the following reasons, alleged by the respondent mayor, negative all element of arbitrariness in his
official action:.
"...please be advised that upon reading the metropolitan newspapers this morning wherein it appears that your
meeting will be an indignation rally at which all the supposed election frauds allegedly perpetrated in many
parts of the Philippines for the purpose of overriding the popular will, will be bared before the people, this
office hereby revokes the said permit..
"It is believed that public peace and order in Manila will be undermined at the proposed rally considering the
passions have not as yet subsided and tension remains high as an aftermath of the last political contest..
"According to the same newspapers, delegates from the provinces and students from local universities will
particpate in the said rally which, in my opinion, would only precipitate trouble since no guarantee can be
given that only the opposition elements will be there. The moment the crowd becomes mixed with people of
different political colors which is most likely to happen, public order is exposed to danger once the people are
incited, as they will be incited, considering the purposes for which the meeting will be held as reported in the
newspapers above mentioned..
"...." (Mayor's letter dated November 15, 1947.).
"I have the honor to acknowledge receipt of your letter of November 7, 1947, requesting for a permit to hold a
public meeting at Plaza Miranda, Quiapo, on Saturday, November 22, 1947, for the purpose of denouncing
the alleged fraudulent manner in which the last elections have been conducted and the alleged nationwide
flagrant violation of the Election Law, and of seeking redress therefor. It is regretted that for the same reasons
stated in my letter of November 15, 1947, your request can not be granted for the present. This Office has
adopted the policy of not permitting meetings of this nature which are likely to incite the people and disrupt
the peace until the results of the elections shall have been officially announced. After this announcement,
requests similar to yours will be granted..
"...." (Mayor's letter dated November 17, 1947.).
"That according to Congressman Primicias, the meeting will be an indignation rally for the purpose of
denouncing the alleged fraudulent manner the said elections were conducted and the nationwide falgrant
violations of the Election Law;.
"2. That it is a fact that the returns of the last elections are still being recounted in the City of Manila in the
Commission on Elections, and pending the final announcement of the results thereof, passions, especially on
the part of the losing groups, remain bitter and high;.
"3. That allusions have been made in the metropolitan newspapers that in the case of defeat, there will be
minority resignations in Congress, rebellion and even revolution in the country;.
"4. That I am sure that the crowd that will attend said meeting will be a multitude of people of different and
varied political sentiments;.
 "5. ....... .
"6. That judging from the tenor of the request for permit and taking into consideration the circumstances
under which said meeting will be held, it is safe to state that once the people are gathered thereat are incited,
there will surely be trouble between the opposing elements, commotion will follow, and then peace and order
in Manila will be disrupted; and.
"7. That the denial of said request for permit has been made for no other reasons except to perform my duty as
Mayor of Manila to maintain and preserve peace and order in this City..
8. That I have assured Congressman Primicias that immediately after the election returns shall have been
officially announced, the Nacionalista Party or any party will be granted permit to hold meetings of
indignation and to denounce alleged faruds." (Annex 1, Answer.).
For these and other reasons which could be advanced in corroboration, I am of the considered opinion that the
respondent Mayor had under the law the requisite discretion to grant or refuse the permit requested, and therefore to
revoke that which had previously been granted, and that the reasons for such revocation alleged in his letters dated
November 15 and 17, 1947, to petitioner and in his affidavit Annex 1 were amply sufficient to justify his last action.
And be it distinctly observed that this last action was not an absolute denial of the permit, but a mere postponement of
the time for holding the "rally" for good reasons "of general interest" in the words of section 2434 (b)-(m) of the
Revised Admninistrative Code..

TUASON, J., dissenting:.

I join in Mr. Hilado's dissent and wish to add a few remarks..
As Mr. Justice Hilado says, freedom of speech, of the press, and of peaceble assemblage, is only an incidental issue in
this case. No one will contest the proposition that the mayor or the Congress itself may stop the petitioner and his men
from meeting peacebly and venting their grievances in a private place. The main issue rather is the extent of the right
of any group of people to use a public street or a public plaza for a purpose other than that for which it is dedicated..
The constitutional guaranty of free speech does not prevent the government from regulating the use of places within
its control. A law or ordinance may forbid the delivery of addresses on the public parks, or on the streets as a valid
exrcise of police power. (12 C. J., 954) Rights of assembly and of petition are not absolute rights and are to be
construed with regard to the general law. (16 C.J.S., 640) Indeed, "the privileges of a citizen of the United States to
use the streets and parks for the communication of views on national questions...must be exercised in subordination to
the general comfort and convenience." (Hague vs. Committee for Industrial Organization, 307 U. S., 496, 83 Law. ed.,
1433) And so long as the municpal authorities act within the legitimate scope of their police power their discretion is
not subject to outside interference or judicial revsion or reversal (14 C. J., 931.).
The mayor did not act capriciously or arbitrarily in withholding or postponing the permit applied for by the petitioner.
His reasons were real, based on contemporary events of public knowledge, and his temporary refusal was reasonably
calculated to avoid possible disturbances as well as to adavance and protect the public in the proper use of the most
congested streets and public plaza in an overcrowded city. There was reason to fear disturbances, not from the
petitioner and his men but from elements who had no connection with the holding of the meeting but who, having
gripes, might be easily excited to violence by inflammatory harangues when nerves were on edge. The fact that no
untoward incident occurred does not prove the judiciousness of this Court's resolution. The court is not dealing with
an isolated case; it is laying down a rule of transcendental importance and far-reaching consequences, in the
administration of cities and towns. If nothing happened, it is well to remember that, according to newspapers, 500
policemen were detailed to prevent possible disorder at the gathering. It should also be borne in mind that vehicular
traffic in the vicinity of Plaza Miranda had to be suspended and vehicles had to be rerouted, during and after the
meeting. All of which entailed enormous expense by the city and discomforts to the general public..
No individual citizen or group of citizens certainly has a right to claim the use of a public plaza or public streets at
such great expense and sacrifice on the part of the city and of the rest of the community. Yet, by virtue of this Court's
resolution any person or group of persons invoking political, civil or religious freedom under the constitution is at
liberty to stage a rally or parade or a religious procession, with the mayor powerless to do anything beyond seeing to it
that no two meetings or parades were held in the same place or close to each other. No precedent in the United States,
after whose institutions ours are modelled, approaches this Court's resolution in its disregard of the government's
authority to control public streets and to maintain peace and order. In an infant republic where the state of peace and
order is still far from normal, where the forces of law are far from adequate to cope with lawlessness; in a city where
conditions of traffic are among the worst if not the worst on earth, this Court sets down a principle that outstrips its
prototype in "liberality", forgetting that personal rights can only exist in a properly regulated society. As Mr. Chief
Justice Hughes said in Cox vs. New Hampshire, 61 S. Ct., 762, "Civil liberties, as guaranteed by the Constitution,
imply the existence of an organized society maintaining public order without which liberty itself would be lsot in the
excesses of unrestrained abuses. The authority of the municipality to impose regulations in order to assure the safety
and convenience of the people in the use 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." To be logical,
peddlers and merchants should be given, as a matter of right, the freedom to use public streets and public squares to
ply their trade, for the freedom of expression and of assemblage is no more sacred than the freedom to make a living.
Yet no one has dared make such a claim..
The cases cited in the resolution are not applicable. It will be seen that each of these cases involved the legality of a
law and municipal ordinance. And if in some of said cases a law or an ordinance was declared void, the grounds of
invalidation were either discrimination or lack of authority of the Legislature or the municipal council under the state
constitution or under the law to adopt the contested measure..
As applied to Manila, there are both a law and an ordiance regulating the use of public places and the holding of
meetings and parades in such places. As long as this law and this ordinance are in force the mayor does not only have
the power but it is his sworn duty to grant or refuse a permit according to what he believes is in consonance with
peace and order or is proper to promote the general comfort and convenience of the inhabitants..
The Court says that section 2434 (m) of the Revised Administrative Code "is not a specific of substantive power
independent from the corresponding municipal ordinance which the Mayor, as Chief Executive of the City, is required
to enforceunder the same section 2434." The Court advances the opinion that because section 2444 confers upon the
municipal board "the police power to regulates the use of streets and othe public places," "It is to be presumed that the
Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m), the same power, specially if
we take into account that its exercise may be in conflict with the exercise of the same power by the municipal board.".
Section 2434 (m) is written in the plainest language for any casual reader to understand, and it is presumed that it
means what it says. This provision certainly was not inserted in the city charter, which must have been drawn with
painstaking care, for nothing. And I am aware of no constitutional provision or constitutional maxim which prohibits
the delegation by the Legislature of part of its police power affacting local matters, directly upon the mayor instead of
through the municipal board. Nor is there incompatibilty between section 2434 (m) and section 2444 or the ordinance
enacted under the latter. At any rate, section 2434 (m) is of special character while section 2444 is general, so that, if
there is any conflict between section 2434 (m) and the ordinance passed under section 2444, the former is to prevail..
This Court has already set at rest the validity, meaning any scope of section 2434 (m) in a unanimous decision with all
the nine members voting, when it sustained the mayor's refusal to grant a permit for a public meeting on a public plaza
to be followed by a parade on public streets. (Evangelista vs. Earnshaw, 57 Phil., 255) The reference to section 2434
(m) in that decision was not an obiter dictum as the majority say. The sole question presented there, as we gather from
the facts disclosed, was the legality of the mayor's action, and the court pointed to section 2434 (m) as the mayor's
authority for his refusal. The fact that the mayor could have denied the petitioner's application under the general
power to prohibit a meeting for unlawful purposes did not make the disposition of the case on the strength of section
2434 (m) obiter dictum. An adjudication on any point within the issues presented by the case cannot be considered a
dictum; and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and
decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement
in the opinion as to a matter on which the decision is predicated. Accordingly, a point expressly decided does not lose
its value as a precedent because the disposition of the case is or might have been on some other ground, or even
though, by reason of other points in the case, the result reached might have been the same if the court had held, on the
particular point, otherwise than it did. (1 C. J. S. 314-315.).
But the Court asserts that if the meaning of section 2434 (m) is what this Court said in Evangelista-Earnshaw case,
then section is void. I do not think that that provision is void--at least not yet. Until it is invalidated in the proper case
and in the proper manner, the mayor's authority in respect of the issuance of permits is to be measured by section 2434
(m) and by the municipal ordinance in so far as the ordinance does not conflict with the law. The validity of that
provision is not challenged and is nowhere in issue. It is highly improper, contrary to the elementary rules of practice
and procedure for this Court to say or declare that the provision is void. Moreover, Article VIII, section 10, of the
Constitution provides that "all cases involving the constitutionality of a treaty or a law shall be heard and decided by
the Supreme Court in banc, and no treaty or law may be declared unconstitutional without the concurrence of two-
thirds of all the members of the court." Only seven voted in favor of the resolution...
1 El letrado Sr. D. Ramon Diokno, en representacion del recurrente, y el Fiscal Auxiliar de Manila D. Julio Villamor,
en representacion del recurrido..
2 Los hechos confirmaron plenamente esta presuncion; el mitin monstruo ques se celebro en la noche del 22 de
Noviembre en virtud de nuestra resolucion concediendo el presente recurso de mandamus-- el mas grande que se
ghaya celebrado jamas en Manila, segun la prensa, y al cual se calcula que assistieron unas 80,000 personas--fue
completamente pacifico y ordenado, no registrandose el menor incidente desagradable. Segun los periodicos, el mitin
fue un magnifico acto de ciudadania militante y responsable, vindicatoria de la fe de todos aquellos que jamas habian
dudado de la sensatez y cultura del pueblo de Manila. .
3 Madame Roland..
4 En Mejico el lema, la consigna political es: "Sufragio efectivo, sin reelecion." Los que conocen Mejico aseguran
que, merced a esta consigna, la era de las convulsiones y guerras civiles en aquella republica ha pasado
definitivamente a la historia. .
5 "No puedo pasar por alto una magistratura que contribuyo mucho a sostener el Gobierno de Roma; fue la de los
censores. Hacian el censo del pueblo, y, ademas, como la fuerza de la republica consistia en la disciplina, la austeridad
de las costumbres y la observacion constante de ciertos ritos, los censores corregian los abusos que la ley no habia
previsto o que el magistrado ordinario no podia castigar.....
"El Gobierno de Roma fue admirable, porque desde su nacimiento, sea por el espiritu del pueblo, la fuerza del Senado
o la autoridad de ciertos magistrados, estaba constituido de tal modo, que todo abuso de poder pudo ser siempre
corregido. .
"El Gobierno de Inglaterra es mas sabio, porque hay un cuerpo encargado de examinarlo continuamente y de
examinarse a si mismo; sus errores son de suerte que nunca se prolongan, y por el espiritu de atencion que despiertan
en el pais, son a menudo utiles. .
"En una palabra: un Gobierno libre, siempre agitado, no podria mantenerse, si no es por sus propias leyes capaz de
corregirse." ("Grandeza y decadencia de los romanos," por Montesquieu, pags. 74, 76 y 77.) .

========================================================
G.R. No. L-32717 November 26, 1970
AMELITO R. MUTUC, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
Amelito R. Mutuc in his own behalf.
Romulo C. Felizmena for respondent.

FERNANDO, J.:
The invocation of his right to free speech by petitioner Amelito Mutuc, then a candidate for delegate to the
Constitutional Convention, in this special civil action for prohibition to assail the validity of a ruling of respondent
Commission on Elections enjoining the use of a taped jingle for campaign purposes, was not in vain. Nor could it be
considering the conceded absence of any express power granted to respondent by the Constitutional Convention Act
to so require and the bar to any such implication arising from any provision found therein, if deference be paid to the
principle that a statute is to be construed consistently with the fundamental law, which accords the utmost priority to
freedom of expression, much more so when utilized for electoral purposes. On November 3, 1970, the very same day
the case was orally argued, five days after its filing, with the election barely a week away, we issued a minute
resolution granting the writ of prohibition prayed for. This opinion is intended to explain more fully our decision.
In this special civil action for prohibition filed on October 29, 1970, petitioner, after setting forth his being a resident
of Arayat, Pampanga, and his candidacy for the position of delegate to the Constitutional Convention, alleged that
respondent Commission on Elections, by a telegram sent to him five days previously, informed him that his certificate
of candidacy was given due course but prohibited him from using jingles in his mobile units equipped with sound
systems and loud speakers, an order which, according to him, is "violative of [his] constitutional right ... to freedom of
speech."1 There being no plain, speedy and adequate remedy, according to petitioner, he would seek a writ of
prohibition, at the same time praying for a preliminary injunction. On the very next day, this Court adopted a
resolution requiring respondent Commission on Elections to file an answer not later than November 2, 1970, at the
same time setting the case for hearing for Tuesday November 3, 1970. No preliminary injunction was issued. There
was no denial in the answer filed by respondent on November 2, 1970, of the factual allegations set forth in the
petition, but the justification for the prohibition was premised on a provision of the Constitutional Convention
Act,2which made it unlawful for candidates "to purchase, produce, request or distribute sample ballots, or electoral
propaganda gadgets such as pens, lighters, fans (of whatever nature), flashlights, athletic goods or materials, wallets,
bandanas, shirts, hats, matches, cigarettes, and the like, whether of domestic or foreign origin."3 It was its contention
that the jingle proposed to be used by petitioner is the recorded or taped voice of a singer and therefore a tangible
propaganda material, under the above statute subject to confiscation. It prayed that the petition be denied for lack of
merit. The case was argued, on November 3, 1970, with petitioner appearing in his behalf and Attorney Romulo C.
Felizmena arguing in behalf of respondent.
This Court, after deliberation and taking into account the need for urgency, the election being barely a week away,
issued on the afternoon of the same day, a minute resolution granting the writ of prohibition, setting forth the absence
of statutory authority on the part of respondent to impose such a ban in the light of the doctrine ofejusdem generis as
well as the principle that the construction placed on the statute by respondent Commission on Elections would raise
serious doubts about its validity, considering the infringement of the right of free speech of petitioner. Its concluding
portion was worded thus: "Accordingly, as prayed for, respondent Commission on Elections is permanently restrained
and prohibited from enforcing or implementing or demanding compliance with its aforesaid order banning the use of
political jingles by candidates. This resolution is immediately executory."4
1. As made clear in our resolution of November 3, 1970, the question before us was one of power. Respondent
Commission on Elections was called upon to justify such a prohibition imposed on petitioner. To repeat, no such
authority was granted by the Constitutional Convention Act. It did contend, however, that one of its provisions
referred to above makes unlawful the distribution of electoral propaganda gadgets, mention being made of pens,
lighters, fans, flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, and cigarettes, and
concluding with the words "and the like."5 For respondent Commission, the last three words sufficed to justify such an
order. We view the matter differently. What was done cannot merit our approval under the well-known principle of
ejusdem generis, the general words following any enumeration being applicable only to things of the same kind or
class as those specifically referred to.6 It is quite apparent that what was contemplated in the Act was the distribution
of gadgets of the kind referred to as a means of inducement to obtain a favorable vote for the candidate responsible for
its distribution.
The more serious objection, however, to the ruling of respondent Commission was its failure to manifest fealty to a
cardinal principle of construction that a statute should be interpreted to assure its being in consonance with, rather
than repugnant to, any constitutional command or prescription.7 Thus, certain Administrative Code provisions were
given a "construction which should be more in harmony with the tenets of the fundamental law."8 The desirability of
removing in that fashion the taint of constitutional infirmity from legislative enactments has always commended itself.
The judiciary may even strain the ordinary meaning of words to avert any collision between what a statute provides
and what the Constitution requires. The objective is to reach an interpretation rendering it free from constitutional
defects. To paraphrase Justice Cardozo, if at all possible, the conclusion reached must avoid not only that it is
unconstitutional, but also grave doubts upon that score.9
2. Petitioner's submission of his side of the controversy, then, has in its favor obeisance to such a cardinal precept. The
view advanced by him that if the above provision of the Constitutional Convention Act were to lend itself to the view
that the use of the taped jingle could be prohibited, then the challenge of unconstitutionality would be difficult to
meet. For, in unequivocal language, the Constitution prohibits an abridgment of free speech or a free press. It has been
our constant holding that this preferred freedom calls all the more for the utmost respect when what may be curtailed
is the dissemination of information to make more meaningful the equally vital right of suffrage. What respondent
Commission did, in effect, was to impose censorship on petitioner, an evil against which this constitutional right is
directed. Nor could respondent Commission justify its action by the assertion that petitioner, if he would not resort to
taped jingle, would be free, either by himself or through others, to use his mobile loudspeakers. Precisely, the
constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but not perpetuating what
is uttered by him through tape or other mechanical contrivances. If this Court were to sustain respondent Commission,
then the effect would hardly be distinguishable from a previous restraint. That cannot be validly done. It would negate
indirectly what the Constitution in express terms assures. 10
3. Nor is this all. 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. Whatever limits it imposes must be observed.
Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether substantive
or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In
its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate
what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the
coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is
paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition
of its being the supreme law.
To be more specific, the competence entrusted to respondent Commission was aptly summed up by the present Chief
Justice thus: "Lastly, as the branch of the executive department — although independent of the President — to which
the Constitution has given the 'exclusive charge' of the 'enforcement and administration of all laws relative to the
conduct of elections,' the power of decision of the Commission is limited to purely 'administrative questions.'"11 It has
been the constant holding of this Court, as it could not have been otherwise, that respondent Commission cannot
exercise any authority in conflict with or outside of the law, and there is no higher law than the Constitution.12 Our
decisions which liberally construe its powers are precisely inspired by the thought that only thus may its responsibility
under the Constitution to insure free, orderly and honest elections be adequately fulfilled. 13 There could be no
justification then for lending approval to any ruling or order issuing from respondent Commission, the effect of which
would be to nullify so vital a constitutional right as free speech. Petitioner's case, as was obvious from the time of its
filing, stood on solid footing.
WHEREFORE, as set forth in our resolution of November 3, 1970, respondent Commission is permanently restrained
and prohibited from enforcing or implementing or demanding compliance with its aforesaid order banning the use of
political taped jingles. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Barredo and Villamor, JJ., concur.
Dizon and Makasiar, JJ., are on leave.

Separate Opinions

TEEHANKEE, J., concurring:

In line with my separate opinion in Badoy vs. Ferrer1 on the unconstitutionality of the challenged provisions of the
1971 Constitutional Convention Act, I concur with the views of Mr. Justice Fernando in the main opinion that "there
could be no justification .... for lending approval to any ruling or order issuing from respondent Commission, the
effect of which would be to nullify so vital a constitutional right as free speech." I would only add the following
observations:
This case once again calls for application of the constitutional test of reasonableness required by the due process
clause of our Constitution. Originally, respondent Commission in its guidelines prescribed summarily that the use by a
candidate of a "mobile unit — roaming around and announcing a meeting and the name of the candidate ... is
prohibited. If it is used only for a certain place for a meeting and he uses his sound system at the meeting itself, there
is no violation."2Acting upon petitioner's application, however, respondent Commission ruled that "the use of a sound
system by anyone be he a candidate or not whether stationary or part of a mobile unit is not prohibited by the 1971
Constitutional Convention Act" but imposed the condition — "provided that there are no jingles and no streamers or
posters placed in carriers."
Respondent Commission's narrow view is that "the use of a 'jingle,' a verbally recorded form of election propaganda,
is no different from the use of a 'streamer' or 'poster,' a printed form of election propaganda, and both forms of election
advertisement fall under the prohibition contained in sec. 12 of R.A. 6132," and "the record disc or tape where said
'jingle' has been recorded can be subject of confiscation by the respondent Commission under par. (E) of sec. 12 of
R.A. 6132." In this modern day and age of the electronically recorded or taped voice which may be easily and
inexpensively disseminated through a mobile sound system throughout the candidate's district, respondent
Commission would outlaw "recorded or taped voices" and would exact of the candidate that he make use of the
mobile sound system only by personal transmission and repeatedly personally sing his "jingle" or deliver his spoken
message to the voters even if he loses his voice in the process or employ another person to do so personally even if
this should prove more expensive and less effective than using a recorded or taped voice.
Respondent Commission's strictures clearly violate, therefore, petitioner's basic freedom of speech and expression.
They cannot pass the constitutional test of reasonableness in that they go far beyond a reasonable relation to the
proper governmental object and are manifestly unreasonable, oppressive and arbitrary.
Insofar as the placing of the candidate's "streamers" or posters on the mobile unit or carrier is concerned, respondent
Commission's adverse ruling that the same falls within the prohibition of section 12, paragraphs (C) and (E) has not
been appealed by petitioner. I would note that respondent Commission's premise that "the use of a 'jingle' ... is no
different from the use of a 'streamer' or 'poster' "in that these both represent forms of election advertisements — to
make the candidate and the fact of his candidacy known to the voters — is correct, but its conclusion is not. The
campaign appeal of the "jingle" is through the voters' ears while that of the "streamers" is through the voters' eyes. But
if it be held that the Commission's ban on "jingles" abridges unreasonably, oppressively and arbitrarily the candidate's
right of free expression, even though such "jingles" may occasionally offend some sensitive ears, the Commission's
ban on "streamers" being placed on the candidate's mobile unit or carrier, which "streamers" are less likely to offend
the voters' sense of sight should likewise be held to be an unreasonable, oppressive and arbitrary curtailment of the
candidate's same constitutional right.
The intent of the law to minimize election expenses as invoked by respondent Commission, laudable as it may be,
should not be sought at the cost of the candidate's constitutional rights in the earnest pursuit of his candidacy, but is to
be fulfilled in the strict and effective implementation of the Act's limitation in section 12(G) on the total expenditures
that may be made by a candidate or by another person with his knowledge and consent.

# Separate Opinions
TEEHANKEE, J., concurring:
In line with my separate opinion in Badoy vs. Ferrer1 on the unconstitutionality of the challenged provisions of the
1971 Constitutional Convention Act, I concur with the views of Mr. Justice Fernando in the main opinion that "there
could be no justification .... for lending approval to any ruling or order issuing from respondent Commission, the
effect of which would be to nullify so vital a constitutional right as free speech." I would only add the following
observations:
This case once again calls for application of the constitutional test of reasonableness required by the due process
clause of our Constitution. Originally, respondent Commission in its guidelines prescribed summarily that the use by a
candidate of a "mobile unit — roaming around and announcing a meeting and the name of the candidate ... is
prohibited. If it is used only for a certain place for a meeting and he uses his sound system at the meeting itself, there
is no violation."2Acting upon petitioner's application, however, respondent Commission ruled that "the use of a sound
system by anyone be he a candidate or not whether stationary or part of a mobile unit is not prohibited by the 1971
Constitutional Convention Act" but imposed the condition — "provided that there are no jingles and no streamers or
posters placed in carriers."
Respondent Commission's narrow view is that "the use of a 'jingle,' a verbally recorded form of election propaganda,
is no different from the use of a 'streamer' or 'poster,' a printed form of election propaganda, and both forms of election
advertisement fall under the prohibition contained in sec. 12 of R.A. 6132," and "the record disc or tape where said
'jingle' has been recorded can be subject of confiscation by the respondent Commission under par. (E) of sec. 12 of
R.A. 6132." In this modern day and age of the electronically recorded or taped voice which may be easily and
inexpensively disseminated through a mobile sound system throughout the candidate's district, respondent
Commission would outlaw "recorded or taped voices" and would exact of the candidate that he make use of the
mobile sound system only by personal transmission and repeatedly personally sing his "jingle" or deliver his spoken
message to the voters even if he loses his voice in the process or employ another person to do so personally even if
this should prove more expensive and less effective than using a recorded or taped voice.
Respondent Commission's strictures clearly violate, therefore, petitioner's basic freedom of speech and expression.
They cannot pass the constitutional test of reasonableness in that they go far beyond a reasonable relation to the
proper governmental object and are manifestly unreasonable, oppressive and arbitrary.
Insofar as the placing of the candidate's "streamers" or posters on the mobile unit or carrier is concerned, respondent
Commission's adverse ruling that the same falls within the prohibition of section 12, paragraphs (C) and (E) has not
been appealed by petitioner. I would note that respondent Commission's premise that "the use of a 'jingle' ... is no
different from the use of a 'streamer' or 'poster' "in that these both represent forms of election advertisements — to
make the candidate and the fact of his candidacy known to the voters — is correct, but its conclusion is not. The
campaign appeal of the "jingle" is through the voters' ears while that of the "streamers" is through the voters' eyes. But
if it be held that the Commission's ban on "jingles" abridges unreasonably, oppressively and arbitrarily the candidate's
right of free expression, even though such "jingles" may occasionally offend some sensitive ears, the Commission's
ban on "streamers" being placed on the candidate's mobile unit or carrier, which "streamers" are less likely to offend
the voters' sense of sight should likewise be held to be an unreasonable, oppressive and arbitrary curtailment of the
candidate's same constitutional right.
The intent of the law to minimize election expenses as invoked by respondent Commission, laudable as it may be,
should not be sought at the cost of the candidate's constitutional rights in the earnest pursuit of his candidacy, but is to
be fulfilled in the strict and effective implementation of the Act's limitation in section 12(G) on the total expenditures
that may be made by a candidate or by another person with his knowledge and consent.
G.R. No. L-31687 February 26, 1970
NAVARRO, petitioner,
vs.
CITY MAYOR ANTONIO J. VILLEGAS, respondent.
RESOLUTION

GENTLEMEN:
Quoted hereunder, for your information, is a resolution of this Court of even date:
"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the pleadings and arguments of the
parties, issued the following Resolution:
Without prejudice to a more extended opinion and taking into account the following considerations:
That respondent Mayor has not denied nor absolutely refused the permit sought by petitioner;
That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses reasonable discretion to determine or
specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and
provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order;
That respondent Mayor has expressly stated his willingness to grant permits for peaceful assemblies at Plaza Miranda
during Saturdays, Sundays and holidays when they would not cause unnecessarily great disruption of the normal
activities of the community and has further offered Sunken Gardens as an alternative to Plaza Miranda as the site of
the demonstration sought to be held this afternoon;
That experiences in connection with present assemblies and demonstrations do not warrant the Court's disbelieving
respondent Mayor's appraisal that a public rally at Plaza Miranda, as compared to one at the Sunken Gardens as he
suggested, poses a clearer and more imminent danger of public disorders, breaches of the peace, criminal acts, and
even bloodshed as an aftermath of such assemblies, and petitioner has manifested that it has no means of preventing
such disorders;
That, consequently, every time that such assemblies are announced, the community is placed in such a state of fear
and tension that offices are closed early and employees dismissed, storefronts boarded up, classes suspended, and
transportation disrupted, to the general detriment of the public:
That civil rights and liberties can exist and be preserved only in an order society;
The petitioner has failed to show a clear specific legal duty on the part of respondent Mayor to grant their application
for permit unconditionally;
The Court resolved to DENY the writ prayed for and to dismiss the petition.

Separate Opinions

VILLAMOR, J., concurring:

The right to freedom of assembly is not denied; but this right is neither unlimited nor absolute. It is not correct to say
that the Mayor has refused to grant the permit applied for; he offered an alternative which, in my opinion, is not
unreasonable. There being no arbitrary refusal to grant permit, petitioner is not entitled to the writ.
CASTRO and FERNANDO, JJ., dissenting:
Two members of the Court, Castro and Fernando, find themselves unable to concur with their brethren and would vote
to grant the petition. The right to freedom of assembly while not unlimited is entitled to be accorded the utmost
deference and respect. If respondent Mayor premised his refusal to grant the permit as sought by petitioner on a clear
showing that he was so empowered under the criteria supplied by Primicias W. Fugoso, then this petition should not
prosper as petitioner himself did invoke such authority. The grounds for his refusal are however, set forth thus in his
letter of February 24, 1970 addressed to petitioner: "In the greater interest of the general public, and in order not to
unduly disturb the life of the community, this Office, guided by a lesson gained from the events of the past few weeks,
has temporarily adopted the policy of not issuing any permit for the use of Plaza Miranda for rallies or demonstrations
during week days."1 They do not, in the opinion of the above two justices, meet the standard of the Primicias ruling. Under
the circumstances, the effect is one of prior restraint of a constitutional right. This is not allowable. An excerpt from a 1969
American Supreme Court decision is persuasive. Thus: "For in deciding whether or not to withhold a permit, the members
of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order,
morals or convenience.' This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of
this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior
restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is
unconstitutional."2 This is without prejudice to a more extended opinion being written later.

Footnotes
1.Annex B, Petition.
2.Shuttlesworth v. Birmingham, 22 L. Ed. 2d 162, 167 (1969).

=================================================================================================================
 United States Supreme Court

NEW YORK TIMES CO. v. UNITED STATES, (1971)

No. 1873
Argued: June 26, 1971 Decided: June 30, 1971
[ Footnote * ] Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to the United
States Court of Appeals for the District of Columbia Circuit.

The United States, which brought these actions to enjoin publication in the New York Times and in the
Washington Post of certain classified material, has not met the "heavy burden of showing justification for the
enforcement of such a [prior] restraint."

No. 1873, 444 F.2d 544, reversed and remanded; No. 1885, ___ U.S. App. D.C. ___, 446 F.2d 1327, affirmed.

Alexander M. Bickel argued the cause for petitioner in No. 1873. With him on the brief were William E. Hegarty
and Lawrence J. McKay.

Solicitor General Griswold argued the cause for the United States in both cases. With him on the brief were
Assistant Attorney General Mardian and Daniel M. Friedman.

William R. Glendon argued the cause for respondents in No. 1885. With him on the brief were Roger A. Clark,
Anthony F. Essaye, Leo P. Larkin, Jr., and Stanley Godofsky.

Briefs of amici curiae were filed by Bob Eckhardt and Thomas I. Emerson for Twenty-Seven Members of
Congress; by Norman Dorsen, Melvin L. Wulf, Burt Neuborne, Bruce J. Ennis, Osmond K. Fraenkel, and Marvin
M. Karpatkin for the American Civil Liberties Union; and by Victor Rabinowitz for the National Emergency Civil
Liberties Committee. [403 U.S. 713, 714]

PER CURIAM.

We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the
Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making
Process on Viet Nam Policy." Post, pp. 942, 943.

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its
constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283
U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such
a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419(1971). The District Court for the Southern
District of New York in the New York Times case and the District Court for the District of Columbia and the
Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had
not met that burden. We agree.
The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the
Court of Appeals for the Second Circuit is reversed and the case is remanded with directions to enter a judgment
affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25,
1971, by the Court are vacated. The judgments shall issue forthwith.

So ordered.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.

I adhere to the view that the Government's case against the Washington Post should have been dismissed and
that the injunction against the New York Times should have been vacated without oral argument when the cases
were first presented to this Court. I believe [403 U.S. 713, 715] that every moment's continuance of the
injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First
Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the
Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the
Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate
that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined.
Such a holding would make a shambles of the First Amendment.

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the
First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic,
the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that
the Government can halt the publication of current news of vital importance to the people of this country.

In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems
to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted,
many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic
freedoms. 1 They especially feared that the [403 U.S. 713, 716] new powers granted to a central government
might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In
response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens
that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed
what later became the First Amendment in three parts, two of which are set out below, and one of which
proclaimed: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their
sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be
inviolable." 2 (Emphasis added.) The amendments were offered to curtail and restrict the general powers granted
to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of
Rights changed the original Constitution into a new charter under which no branch of government could abridge
the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some
members of the Court appear to agree that the general powers of the Government adopted in the original
Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights
adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First
Amendment, able men [403 U.S. 713, 717] that they were, wrote in language they earnestly believed could never
be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press . . . ." Both the history
and language of the First Amendment support the view that the press must be left free to publish news, whatever
the source, without censorship, injunctions, or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its
essential role in our democracy. The press was to serve the governed, not the governors. The Government's
power to censor the press was abolished so that the press would remain forever free to censure the Government.
The press was protected so that it could bare the secrets of government and inform the people. Only a free and
unrestrained press can effectively expose deception in government. And paramount among the responsibilities of
a free press is the duty to prevent any part of the government from deceiving the people and sending them off to
distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for
their courageous reporting, the New York Times, the Washington Post, and other newspapers should be
commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of
government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and
trusted they would do.

The Government's case here is based on premises entirely different from those that guided the Framers of the
First Amendment. The Solicitor General has carefully and emphatically stated:

"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly
respect it. You say that no law means no law, and that should be obvious. I can only [403 U.S. 713, 718] say, Mr.
Justice, that to me it is equally obvious that `no law' does not mean `no law', and I would seek to persuade the
Court that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the
Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or
to protect the security of the United States." 3
And the Government argues in its brief that in spite of the First Amendment, "[t]he authority of the Executive
Department to protect the nation against publication of information whose disclosure would endanger the
national security stems from two interrelated sources: the constitutional power of the President over the conduct
of foreign affairs and his authority as Commander-in-Chief." 4

In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive
Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging
freedom of the press in the name of "national security." The Government does not even attempt to rely on any act
of Congress. Instead it makes the bold and dangerously far-reaching contention that the courts should take it
upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and
national security, even when the representatives of the people in Congress have adhered to the command of the
First Amendment and refused to make such a law. 5 See concurring opinion of MR. JUSTICE DOUGLAS, [403
U.S. 713, 719] post, at 721-722. To find that the President has "inherent power" to halt the publication of news by
resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the
very people the Government hopes to make "secure." No one can read the history of the adoption of the First
Amendment without being convinced beyond any doubt that it was injunctions like those sought here that
Madison and his collaborators intended to outlaw in this Nation for all time.

The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the
fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the
expense of informed representative government provides no real security for our Republic. The Framers of the
First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial
governments, sought to give this new society strength and security by providing that freedom of speech, press,
religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief
Justice Hughes - great man and great Chief Justice that he was - when the Court held a man could not be
punished for attending a meeting run by Communists.

"The greater the importance of safeguarding the community from incitements to the overthrow of our
institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights
of free speech, free press and free [403 U.S. 713, 720] assembly in order to maintain the opportunity for free
political discussion, to the end that government may be responsive to the will of the people and that changes, if
desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of
constitutional government." 6
Footnotes
[ Footnote 1 ] In introducing the Bill of Rights in the House of Representatives, Madison said: "[B]ut I believe that
the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual
provisions against the encroachments on particular rights . . . ." 1 Annals of Cong. 433. Congressman Goodhue
added: "[I]t is the wish of many of our constituents, that something should be added to the Constitution, to
secure in a stronger manner their liberties from the inroads of power." Id., at 426.

[ Footnote 2 ] The other parts were:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national
religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext,
infringed."
"The people shall not be restrained from peaceably assembling and consulting for their common good; nor from
applying to the Legislature by petitions, or remonstrances, for redress of their grievances." 1 Annals of Cong. 434.
[ Footnote 3 ] Tr. of Oral Arg. 76.

[ Footnote 4 ] Brief for the United States 13-14.

[ Footnote 5 ] Compare the views of the Solicitor General with those of James Madison, the author of the First
Amendment. When speaking of the Bill of Rights in the House of Representatives, Madison said: "If they [the
first ten amendments] are incorporated into the Constitution, [403 U.S. 713, 719] independent tribunals of justice
will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable
bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist
every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." 1
Annals of Cong. 439.

[ Footnote 6 ] De Jonge v. Oregon, 299 U.S. 353, 365 .

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.

While I join the opinion of the Court I believe it necessary to express my views more fully.

It should be noted at the outset that the First Amendment provides that "Congress shall make no law . . .
abridging the freedom of speech, or of the press." That leaves, in my view, no room for governmental restraint on
the press. 1

There is, moreover, no statute barring the publication by the press of the material which the Times and the Post
seek to use. Title 18 U.S.C. 793 (e) provides that "[w]hoever having unauthorized possession of, access to, or
control over any document, writing . . . or information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign
nation, willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined [403 U.S.
713, 721] not more than $10,000 or imprisoned not more than ten years, or both."

The Government suggests that the word "communicates" is broad enough to encompass publication.
There are eight sections in the chapter on espionage and censorship, 792-799. In three of those eight "publish" is
specifically mentioned: 794 (b) applies to "Whoever, in time of war, with intent that the same shall be
communicated to the enemy, collects, records, publishes, or communicates . . . [the disposition of armed forces]."

Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photographs of defense installations.

Section 798 relating to cryptography applies to whoever: "communicates, furnishes, transmits, or otherwise
makes available . . . or publishes" the described material. 2 (Emphasis added.)

Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in
the various sections of the Espionage Act.

The other evidence that 793 does not apply to the press is a rejected version of 793. That version read: "During
any national emergency resulting from a war to which the United States is a party, or from threat of such a war,
the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the
publishing or communicating of, or the attempting to publish or communicate any information relating to the
national defense which, in his judgment, is of such character that it is or might be useful to the [403 U.S. 713,
722] enemy." 55 Cong. Rec. 1763. During the debates in the Senate the First Amendment was specifically cited
and that provision was defeated. 55 Cong. Rec. 2167.

Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore preeminently
sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. 793 states in 1 (b) that:

"Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any
way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United
States and no regulation shall be promulgated hereunder having that effect." 64 Stat. 987.
Thus Congress has been faithful to the command of the First Amendment in this area.

So any power that the Government possesses must come from its "inherent power."

The power to wage war is "the power to wage war successfully." See Hirabayashi v. United States, 320 U.S. 81, 93 .
But the war power stems from a declaration of war. The Constitution by Art. I, 8, gives Congress, not the
President, power "[t]o declare War." Nowhere are presidential wars authorized. We need not decide therefore
what leveling effect the war power of Congress might have.

These disclosures 3 may have a serious impact. But that is no basis for sanctioning a previous restraint on [403
U.S. 713, 723] the press. As stated by Chief Justice Hughes in Near v. Minnesota, 283 U.S. 697, 719 -720:

"While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring
faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public
opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the
period in which our institutions took shape. Meanwhile, the administration of government has become more
complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious
proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental
security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant
and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant
purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in
dealing with official misconduct."
As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 , "[a]ny prior
restraint on expression comes to this Court with a `heavy presumption' against its constitutional validity."

The Government says that it has inherent powers to go into court and obtain an injunction to protect the national
interest, which in this case is alleged to be national security.

Near v. Minnesota, 283 U.S. 697 , repudiated that expansive doctrine in no uncertain terms.

The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental
suppression [403 U.S. 713, 724] of embarrassing information. It is common knowledge that the First
Amendment was adopted against the widespread use of the common law of seditious libel to punish the
dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of
Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). The present cases will, I
think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes
on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present
documents. The latter are highly relevant to the debate in progress.

Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and
discussion of public issues are vital to our national health. On public questions there should be "uninhibited,
robust, and wide-open" debate. New York Times Co. v. Sullivan, 376 U.S. 254, 269-270.

I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay of the Court of Appeals in
the Times case and direct that it affirm the District Court.

The stays in these cases that have been in effect for more than a week constitute a flouting of the principles of the
First Amendment as interpreted in Near v. Minnesota.

[ Footnote 1 ] See Beauharnais v. Illinois, 343 U.S. 250, 267 (dissenting opinion of MR. JUSTICE BLACK), 284 (my
dissenting opinion); Roth v. United States, 354 U.S. 476, 508 (my dissenting opinion which MR. JUSTICE BLACK
joined); Yates v. United States, 354 U.S. 298, 339 (separate opinion of MR. JUSTICE BLACK which I joined); New
York Times Co. v. Sullivan, 376 U.S. 254, 293 (concurring opinion of MR. JUSTICE BLACK which I joined);
Garrison v. Louisiana, 379 U.S. 64, 80 (my concurring opinion which MR. JUSTICE BLACK joined).

[ Footnote 2 ] These documents contain data concerning the communications system of the United States, the
publication of which is made a crime. But the criminal sanction is not urged by the United States as the basis of
equity power.

[ Footnote 3 ] There are numerous sets of this material in existence and they apparently are not under any
controlled custody. Moreover, the President has sent a set to the Congress. We start then with a case where there
already is rather wide distribution of the material that is destined for publicity, not secrecy. I have gone over the
material listed in the in camera brief of the United States. It is all history, not future events. None of it is more
recent than 1968.

MR. JUSTICE BRENNAN, concurring.

 I
I write separately in these cases only to emphasize what should be apparent: that our judgments in the present
cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining [403
U.S. 713, 725] orders to block the publication of material sought to be suppressed by the Government. So far as I
can determine, never before has the United States sought to enjoin a newspaper from publishing information in
its possession. The relative novelty of the questions presented, the necessary haste with which decisions were
reached, the magnitude of the interests asserted, and the fact that all the parties have concentrated their
arguments upon the question whether permanent restraints were proper may have justified at least some of the
restraints heretofore imposed in these cases. Certainly it is difficult to fault the several courts below for seeking
to assure that the issues here involved were preserved for ultimate review by this Court. But even if it be assumed
that some of the interim restraints were proper in the two cases before us, that assumption has no bearing upon
the propriety of similar judicial action in the future. To begin with, there has now been ample time for reflection
and judgment; whatever values there may be in the preservation of novel questions for appellate review may not
support any restraints in the future. More important, the First Amendment stands as an absolute bar to the
imposition of judicial restraints in circumstances of the kind presented by these cases.

II
The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever,
interim or otherwise. The entire thrust of the Government's claim throughout these cases has been that
publication of the material sought to be enjoined "could," or "might," or "may" prejudice the national interest in
various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated
upon surmise or conjecture that untoward consequences [403 U.S. 713, 726] may result. * Our cases, it is true,
have indicated that there is a single, extremely narrow class of cases in which the First Amendment's ban on
prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when
the Nation "is at war," Schenck v. United States, 249 U.S. 47, 52 (1919), during which times "[n]o one would
question but that a government might prevent actual obstruction to its recruiting service or the publication of the
sailing dates of transports or the number and location of troops." Near v. Minnesota, 283 U.S. 697, 716 (1931).
Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently
available armaments would justify even in peacetime the suppression of information that would set in motion a
nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of
items from or based upon the material at issue would cause the happening of an event of that nature. "[T]he chief
purpose of [the First Amendment's] guaranty [is] to prevent previous restraints upon publication." Near v.
Minnesota, supra, at 713. Thus, only governmental allegation and proof that publication must inevitably,
directly, [403 U.S. 713, 727] and immediately cause the occurrence of an event kindred to imperiling the safety of
a transport already at sea can support even the issuance of an interim restraining order. In no event may mere
conclusions be sufficient: for if the Executive Branch seeks judicial aid in preventing publication, it must
inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And therefore, every
restraint issued in this case, whatever its form, has violated the First Amendment - and not less so because that
restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly.
Unless and until the Government has clearly made out its case, the First Amendment commands that no
injunction may issue.

[ Footnote * ] Freedman v. Maryland, 380 U.S. 51 (1965), and similar cases regarding temporary restraints of
allegedly obscene materials are not in point. For those cases rest upon the proposition that "obscenity is not
protected by the freedoms of speech and press." Roth v. United States, 354 U.S. 476, 481 (1957). Here there is no
question but that the material sought to be suppressed is within the protection of the First Amendment; the only
question is whether, notwithstanding that fact, its publication may be enjoined for a time because of the presence
of an overwhelming national interest. Similarly, copyright cases have no pertinence here: the Government is not
asserting an interest in the particular form of words chosen in the documents, but is seeking to suppress the
ideas expressed therein. And the copyright laws, of course, protect only the form of expression and not the ideas
expressed.

MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.

In the governmental structure created by our Constitution, the Executive is endowed with enormous power in
the two related areas of national defense and international relations. This power, largely unchecked by the
Legislative 1 and Judicial 2 branches, has been pressed to the very hilt since the advent of the nuclear missile age.
For better or for worse, the simple fact is that a [403 U.S. 713, 728] President of the United States possesses vastly
greater constitutional independence in these two vital areas of power than does, say, a prime minister of a
country with a parliamentary from of government.

In the absence of the governmental checks and balances present in other areas of our national life, the only
effective restraint upon executive policy and power in the areas of national defense and international affairs may
lie in an enlightened citizenry - in an informed and critical public opinion which alone can here protect the values
of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most
vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be
an enlightened people.

Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective
national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an
atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own
executive departments, the development of considered and intelligent international policies would be impossible
if those charged with their formulation could not communicate with each other freely, frankly, and in confidence.
In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident.

I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the
power is. 3 If the Constitution gives the Executive [403 U.S. 713, 729] a large degree of unshared power in the
conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the
Executive must have the largely unshared duty to determine and preserve the degree of internal security
necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of
a high order. I should suppose that moral, political, and practical considerations would dictate that a very first
principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is
classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless,
and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the
hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that
secrecy can best be preserved only when credibility is truly maintained. But be that as it may, it is clear to me
that it is the constitutional duty of the Executive - as a matter of sovereign prerogative and not as a matter of law
as the courts know law - through the promulgation and enforcement of executive regulations, to protect [403 U.S.
713, 730] the confidentiality necessary to carry out its responsibilities in the fields of international relations and
national defense.
This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact
specific and appropriate criminal laws to protect government property and preserve government secrets.
Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances
of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the
applicability of the criminal law under which the charge is brought. Moreover, if Congress should pass a specific
law authorizing civil proceedings in this field, the courts would likewise have the duty to decide the
constitutionality of such a law as well as its applicability to the facts proved.

But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are
asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked,
quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should
not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of
the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate,
and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but
one judicial resolution of the issues before us. I join the judgments of the Court.

[ Footnote 1 ] The President's power to make treaties and to appoint ambassadors is, of course, limited by the
requirement of Art. II, 2, of the Constitution that he obtain the advice and consent of the Senate. Article I, 8,
empowers Congress to "raise and support Armies," and "provide and maintain a Navy." And, of course, Congress
alone can declare war. This power was last exercised almost 30 years ago at the inception of World War II. Since
the end of that war in 1945, the Armed Forces of the United States have suffered approximately half a million
casualties in various parts of the world.

[ Footnote 2 ] See Chicago & Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103 ; Hirabayashi v. United
States, 320 U.S. 81 ; United States v. Curtiss-Wright Corp., 299 U.S. 304 ; cf. Mora v. McNamara, 128 U.S. App.
D.C. 297, 387 F.2d 862, cert. denied, 389 U.S. 934 .

[ Footnote 3 ] "It is quite apparent that if, in the maintenance of our international relations, embarrassment -
perhaps serious embarrassment - is to be avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the international field must often accord to
the President a degree of discretion and freedom from statutory restriction which [403 U.S. 713, 729] would not
be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of
knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form of diplomatic, consular and other officials.
Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it
productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request
to lay before the House of Representatives the instructions, correspondence and documents relating to the
negotiation of the Jay Treaty - a refusal the wisdom of which was recognized by the House itself and has never
since been doubted. . . ." United States v. Curtiss-Wright Corp., 299 U.S. 304, 320 .

MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.

I concur in today's judgments, but only because of the concededly extraordinary protection against prior
restraints [403 U.S. 713, 731] enjoyed by the press under our constitutional system. I do not say that in no
circumstances would the First Amendment permit an injunction against publishing information about
government plans or operations. 1 Nor, after examining the materials the Government characterizes as the most
sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public
interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the
United States has not satisfied the very heavy burden that it must meet to warrant an injunction against
publication in these cases, at least in the absence of express and appropriately limited congressional
authorization for prior restraints in circumstances such as these. [403 U.S. 713, 732]

The Government's position is simply stated: The responsibility of the Executive for the conduct of the foreign
affairs and for the security of the Nation is so basic that the President is entitled to an injunction against
publication of a newspaper story whenever he can convince a court that the information to be revealed threatens
"grave and irreparable" injury to the public interest; 2 and the injunction should issue whether or not the
material to be published is classified, whether or not publication would be lawful under relevant criminal statutes
enacted by Congress, and regardless of the circumstances by which the newspaper came into possession of the
information.

At least in the absence of legislation by Congress, based on its own investigations and findings, I am quite unable
to agree that the inherent powers of the Executive and the courts reach so far as to authorize remedies having
such sweeping potential for inhibiting publications by the press. Much of the difficulty inheres in the "grave and
irreparable danger" standard suggested by the United States. If the United States were to have judgment under
such a standard in these cases, our decision would be of little guidance to other courts in other cases, for the
material at issue here would not be available from the Court's opinion or from public records, nor would it be
published by the press. Indeed, even today where we hold that the United States has not met its burden, the
material remains sealed in court records and it is [403 U.S. 713, 733] properly not discussed in today's opinions.
Moreover, because the material poses substantial dangers to national interests and because of the hazards of
criminal sanctions, a responsible press may choose never to publish the more sensitive materials. To sustain the
Government in these cases would start the courts down a long and hazardous road that I am not willing to travel,
at least without congressional guidance and direction.

It is not easy to reject the proposition urged by the United States and to deny relief on its good-faith claims in
these cases that publication will work serious damage to the country. But that discomfiture is considerably
dispelled by the infrequency of prior-restraint cases. Normally, publication will occur and the damage be done
before the Government has either opportunity or grounds for suppression. So here, publication has already
begun and a substantial part of the threatened damage has already occurred. The fact of a massive breakdown in
security is known, access to the documents by many unauthorized people is undeniable, and the efficacy of
equitable relief against these or other newspapers to avert anticipated damage is doubtful at best.

What is more, terminating the ban on publication of the relatively few sensitive documents the Government now
seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or
that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification
under the First Amendment; but failure by the Government to justify prior restraints does not measure its
constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to
proceed by injunction does not mean that it could not successfully proceed in another way.

When the Espionage Act was under consideration in [403 U.S. 713, 734] 1917, Congress eliminated from the bill a
provision that would have given the President broad powers in time of war to proscribe, under threat of criminal
penalty, the publication of various categories of information related to the national defense. 3 Congress at that
time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those
opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to
"filter out the news to the people through some man." 55 Cong. Rec. 2008 (remarks of Sen. Ashurst). However,
these same members of congress appeared to have little doubt that newspapers would be subject to criminal
prosecution if they insisted on publishing information of the type Congress had itself determined should not be
revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper "should be punished if
he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder
factories, the location of defense works, and all that sort of thing." Id., at 2009. 4 [403 U.S. 713, 735]

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 5makes it a
crime to publish certain photographs or drawings of military installations. Section 798, 6also in precise language,
proscribes knowing and willful publication of any classified information concerning the cryptographic
systems [403 U.S. 713, 736] or communication intelligence activities of the United States as well as any
information obtained from communication intelligence operations. 7If any of the material here at issue is of this
nature, the newspapers are presumably now on full notice of the position of the United States and must face the
consequences if they [403 U.S. 713, 737] publish. I would have no difficulty in sustaining convictions under these
sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

The same would be true under those sections of the Criminal Code casting a wider net to protect the national
defense. Section 793 (e) 8 makes it a criminal act for any unauthorized possessor of a document "relating to the
national defense" either (1) willfully to communicate or cause to be communicated that document to any person
not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United
States entitled to receive it. The subsection was added in 1950 because pre-existing law provided no [403 U.S.
713, 738] penalty for the unauthorized possessor unless demand for the documents was made. 9 "The dangers
surrounding the unauthorized possession of such items are self-evident, [403 U.S. 713, 739] and it is deemed
advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized
possession may be unknown to the authorities who would otherwise make the demand." S. Rep. No. 2369, pt. 1,
81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the unpublished documents have been demanded
by the United States and their import has been made known at least to counsel for the newspapers involved. In
Gorin v. United States, 312 U.S. 19, 28 (1941), the words "national defense" as used in a predecessor of 793 were
held by a unanimous Court to have "a well understood connotation" - a "generic concept of broad connotations,
referring to the military and naval establishments and the related activities of national preparedness" - and to be
"sufficiently definite to apprise the public of prohibited activities" [403 U.S. 713, 740] and to be consonant with
due process.312 U.S., at 28 . Also, as construed by the Court in Gorin, information "connected with the national
defense" is obviously not limited to that threatening "grave and irreparable" injury to the United States.10

It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the
national defense from unauthorized disclosure of potentially damaging information. Cf. Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 585 -586 (1952); see also id., at 593-628 (Frankfurter, J., concurring). It has
not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied
to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am
not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a
crime if it published all the material now in its possession. That matter must await resolution in the context of a
criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would
be determined by procedures and standards quite different from those that have purported to govern these
injunctive proceedings.
[ Footnote 1 ] The Congress has authorized a strain of prior restraints against private parties in certain instances.
The National Labor Relations Board routinely issues cease-and-desist orders against employers who it finds have
threatened or coerced employees in the exercise of protected rights. See 29 U.S.C. 160 (c). Similarly, the Federal
Trade Commission is empowered to impose cease-and-desist orders against unfair methods of competition. 15
U.S.C. 45 (b). Such orders can, and quite often do, restrict what may be spoken or written under certain
circumstances. See, e. g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616 -620 (1969). Article I, 8, of the
Constitution authorizes Congress to secure the "exclusive right" of authors to their writings, and no one denies
that a newspaper can properly be enjoined from publishing the copyrighted works of another. See Westermann
Co. v. Dispatch Co., 249 U.S. 100 (1919). Newspapers do themselves rely from time to time on the copyright as a
means of protecting their accounts of important events. However, those enjoined under the statutes relating to
the National Labor Relations Board and the Federal Trade Commission are private parties, not the press; and
when the press is enjoined under the copyright laws the complainant is a private copyright holder enforcing a
private right. These situations are quite distinct from the Government's request for an injunction against
publishing information about the affairs of government, a request admittedly not based on any statute.

[ Footnote 2 ] The "grave and irreparable danger" standard is that asserted by the Government in this Court. In
remanding to Judge Gurfein for further hearings in the Times litigation, five members of the Court of Appeals for
the Second Circuit directed him to determine whether disclosure of certain items specified with particularity by
the Government would "pose such grave and immediate danger to the security of the United States as to warrant
their publication being enjoined."

[ Footnote 3 ] "Whoever, in time of war, in violation of reasonable regulations to be prescribed by the President,
which he is hereby authorized to make and promulgate, shall publish any information with respect to the
movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft, or war
materials of the United States, or with respect to the plans or conduct of any naval or military operations, or with
respect to any works or measures undertaken for or connected with, or intended for the fortification or defense
of any place, or any other information relating to the public defense calculated to be useful to the enemy, shall be
punished by a fine . . . or by imprisonment . . . ." 55 Cong. Rec. 2100.

[ Footnote 4 ] Senator Ashurst also urged that "`freedom of the press' means freedom from the restraints of a
censor, means the absolute liberty and right to publish whatever you wish; but you take your chances of
punishment in the courts of your country for the violation of the laws of libel, slander, and treason." 55 Cong.
Rec. 2005.

[ Footnote 5 ] Title 18 U.S.C. 797 provides:

"On and after thirty days from the date upon which the President defines any vital military or naval installation
or equipment as being within the category contemplated under section 795 of this title, whoever reproduces,
publishes, sells, or gives away any photograph, sketch, picture, drawing, map, or graphical representation of the
vital military or naval installations or equipment so defined, without first obtaining permission of the
commanding officer of the military or naval post, camp, or station concerned, or higher authority, unless such
photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon that it has
been censored by the proper military or naval authority, shall be fined not more than $1,000 or imprisoned not
more than one year, or both."
[ Footnote 6 ] In relevant part 18 U.S.C. 798 provides:
"(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an
unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States
or for the benefit of any foreign government to the detriment of the United States any classified information -
"(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States
or any foreign government; or
"(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used
or prepared or planned for use by the United States or any foreign government for cryptographic or
communication intelligence purposes; or
"(3) concerning the communication intelligence activities of the United States or any foreign government; or
"(4) obtained by the process of communication intelligence from the communications of any foreign government,
knowing the same to have been obtained by such processes -
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
[ Footnote 7 ] The purport of 18 U.S.C. 798 is clear. Both the House and Senate Reports on the bill, in identical
terms, speak of furthering the security of the United States by preventing disclosure of information concerning
the cryptographic systems and the communication intelligence systems of the United States, and explaining that
"[t]his bill makes it a crime to reveal the methods, techniques, and material used in the transmission by this
Nation of enciphered or coded messages. . . . Further, it makes it a crime to reveal methods used by this Nation in
breaking the secret codes of a foreign nation. It also prohibits under certain penalties the divulging of any
information which may have come into this Government's hands as a result of such a code-breaking." H. R. Rep.
No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was explained as covering "only a small
category of classified matter, a category which is both vital and vulnerable to an almost unique degree." Id., at 2.
Existing legislation was deemed inadequate.

"At present two other acts protect this information, but only in a limited way. These are the Espionage Act of 1917
(40 Stat. 217) and the act of June 10, 1933 (48 Stat. 122). Under the first, unauthorized revelation of information
of this kind can be penalized only if it can be proved that the person making the revelation did so with an intent
to injure the United States. Under the second, only diplomatic codes and messages transmitted in diplomatic
codes are protected. The present bill is designed to protect against knowing and willful publication or any other
revelation of all important information affecting the United States communication intelligence operations and all
direct information about all United States codes and ciphers." Ibid.
Section 798 obviously was intended to cover publications by nonemployees of the Government and to ease the
Government's burden in obtaining convictions. See H. R. Rep. No. 1895, supra, at 2-5. The identical Senate
Report, not cited in parallel in the text of this footnote, is S. Rep. No. 111, 81st Cong., 1st Sess. (1949).

[ Footnote 8 ] Section 793 (e) of 18 U.S.C. provides that:

"(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book,
signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or
note relating to the national defense, or information relating to the national defense which information the
possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign
nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or
attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to
any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee
of the United States entitled to receive it;"
is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should also be noted that 18
U.S.C. 793 (g), added in 1950 (see 64 Stat. 1004; S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides
that "[i]f two or more persons conspire to violate any of the foregoing provisions of this section, and one or more
of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be
subject to the punishment provided for the offense which is the object of such conspiracy."

[ Footnote 9 ] The amendment of 793 that added subsection (e) was part of the Subversive Activities Control Act
of 1950, which was in turn Title I of the Internal Security Act of 1950. See 64 Stat. 987. The report of the Senate
Judiciary Committee best explains the purposes of the amendment:

"Section 18 of the bill amends section 793 of title 18 of the United States Code (espionage statute). The several
paragraphs of section 793 of title 18 are designated as subsections (a) through (g) for purposes of convenient
reference. The significant changes which would be made in section 793 of title 18 are as follows:
"(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the unlawful dissemination of
`information relating to the national defense which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of any foreign nation.' The phrase `which information
the possessor has reason to believe could be used to the injury of the United States or to the advantage of any
foreign nation' would modify only `information relating to the national defense' and not the other items
enumerated in the subsection. The fourth paragraph of section 793 is also amended to provide that only those
with lawful possession of the items relating to national defense enumerated therein may retain them subject to
demand therefor. Those who have unauthorized possession of such items are treated in a separate subsection.
"(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of items enumerated in
paragraph 4 of section 793 must surrender possession thereof to the proper authorities without demand.
Existing law provides no penalty for the unauthorized possession of such items unless a demand for them is
made by the person entitled to receive them. The dangers surrounding the unauthorized possession of such items
are self-evident, and it is deemed advisable to require their surrender in such a case, regardless of demand,
especially since their unauthorized possession may be unknown to the authorities who would otherwise make the
demand. The only difference between subsection (d) and subsection (e) of section 793 is that a demand by the
person entitled to receive the items would be a necessary element of an offense under subsection (d) where the
possession is lawful, whereas such [403 U.S. 713, 739] a demand would not be a necessary element of an offense
under subsection (e) where the possession is unauthorized." S. Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9
(1950) (emphasis added).
It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern District of
New York in this case, that in prosecuting for communicating or withholding a "document" as contrasted with
similar action with respect to "information" the Government need not prove an intent to injure the United States
or to benefit a foreign nation but only willful and knowing conduct. The District Court relied on Gorin v. United
States, 312 U.S. 19 (1941). But that case arose under other parts of the predecessor to 793, see 312 U.S., at 21 -22 -
parts that imposed different intent standards not repeated in 793 (d) or 793 (e). Cf. 18 U.S.C. 793 (a), (b), and (c).
Also, from the face of subsection (e) and from the context of the Act of which it was a part, it seems undeniable
that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution under 793
(e) if they communicate or withhold the materials covered by that section. The District Court ruled that
"communication" did not reach publication by a newspaper of documents relating to the national defense. I
intimate no views on the correctness of that conclusion. But neither communication nor publication is necessary
to violate the subsection.

[ Footnote 10 ] Also relevant is 18 U.S.C. 794. Subsection (b) thereof forbids in time of war the collection or
publication, with intent that it shall be communicated to the enemy, of any information with respect to the
movements of military forces, "or with respect to the plans or conduct . . . of any naval or military operations . . .
or any other information relating to the public defense, which might be useful to the enemy . . . ."

MR. JUSTICE MARSHALL, concurring.

The Government contends that the only issue in these cases is whether in a suit by the United States, "the First
Amendment bars a court from prohibiting a newspaper [403 U.S. 713, 741] from publishing material whose
disclosure would pose a `grave and immediate danger to the security of the United States.'" Brief for the United
States 7. With all due respect, I believe the ultimate issue in these cases is even more basic than the one posed by
the Solicitor General. The issue is whether this Court or the Congress has the power to make law.

In these cases there is no problem concerning the President's power to classify information as "secret" or "top
secret." Congress has specifically recognized Presidential authority, which has been formally exercised in Exec.
Order 10501 (1953), to classify documents and information. See, e. g., 18 U.S.C. 798; 50 U.S.C. 783. 1 Nor is there
any issue here regarding the President's power as Chief Executive and Commander in Chief to protect national
security by disciplining employees who disclose information and by taking precautions to prevent leaks.

The problem here is whether in these particular cases the Executive Branch has authority to invoke the equity
jurisdiction of the courts to protect what it believes to be the national interest. See In re Debs,158 U.S. 564,
584 (1895). The Government argues that in addition to the inherent power of any government to protect itself,
the President's power to conduct foreign affairs and his position as Commander in Chief give him authority to
impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the
military affairs of the country. Of course, it is beyond cavil that the President has broad powers by virtue of his
primary responsibility for the conduct of our foreign affairs and his position as Commander in Chief. Chicago &
Southern Air Lines v. Waterman S. S. Corp., 333 U.S. 103 (1948); Hirabayashi v. United States, 320 U.S. 81,
93 (1943); United States v. Curtiss-Wright [403 U.S. 713, 742] Corp., 299 U.S. 304 (1936). 2 And in some
situations it may be that under whatever inherent powers the Government may have, as well as the implicit
authority derived from the President's mandate to conduct foreign affairs and to act as Commander in Chief,
there is a basis for the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of
material damaging to "national security," however that term may be defined.

It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use its power
of contempt to prevent behavior that Congress has specifically declined to prohibit. There would be a similar
damage to the basic concept of these co-equal branches of Government if when the Executive Branch has
adequate authority granted by Congress to protect "national security" it can choose instead to invoke the
contempt power of a court to enjoin the threatened conduct. The Constitution provides that Congress shall make
laws, the President execute laws, and courts interpret laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952). It did not provide for government by injunction in which the courts and the Executive Branch can
"make law" without regard to the action of Congress. It may be more convenient for the Executive Branch if it
need only convince a judge to prohibit conduct rather than ask the Congress to pass a law, and it may be more
convenient to enforce a contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be
considered politically wise to get a court to share the responsibility for arresting those who the Executive Branch
has probable cause to believe are violating the law. But convenience and political considerations of the[403 U.S.
713, 743] moment do not justify a basic departure from the principles of our system of government.
In these cases we are not faced with a situation where Congress has failed to provide the Executive with broad
power to protect the Nation from disclosure of damaging state secrets. Congress has on several occasions given
extensive consideration to the problem of protecting the military and strategic secrets of the United States. This
consideration has resulted in the enactment of statutes making it a crime to receive, disclose, communicate,
withhold, and publish certain documents, photographs, instruments, appliances, and information. The bulk of
these statutes is found in chapter 37 of U.S.C., Title 18, entitled Espionage and Censorship. 3 In that chapter, [403
U.S. 713, 744] Congress has provided penalties ranging from a $10,000 fine to death for violating the various
statutes.

Thus it would seem that in order for this Court to issue an injunction it would require a showing that such an
injunction would enhance the already existing power of the Government to act. See Bennett v. Laman, 277 N. Y.
368, 14 N. E. 2d 439 (1938). It is a traditional axiom of equity that a court of equity will not do a useless thing
just as it is a traditional axiom that equity will not enjoin the commission of a crime. See Z. Chafee & E. Re,
Equity 935-954 (5th ed. 1967); 1 H. Joyce, Injunctions 58-60a (1909). Here there has been no attempt to make
such a showing. The Solicitor General does not even mention in his brief whether the Government considers that
there is probable cause to believe a crime has been committed or whether there is a conspiracy to commit future
crimes.

If the Government had attempted to show that there was no effective remedy under traditional criminal law, it
would have had to show that there is no arguably applicable statute. Of course, at this stage this Court could not
and cannot determine whether there has been a violation of a particular statute or decide the constitutionality of
any statute. Whether a good-faith prosecution could have been instituted under any statute could, however, be
determined. [403 U.S. 713, 745]

At least one of the many statutes in this area seems relevant to these cases. Congress has provided in 18 U.S.C.
793 (e) that whoever "having unauthorized possession of, access to, or control over any document, writing, code
book, signal book . . . or note relating to the national defense, or information relating to the national defense
which information the possessor has reason to believe could be used to the injury of the United States or to the
advantage of any foreign nation, willfully communicates, delivers, transmits . . . the same to any person not
entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United
States entitled to receive it . . . [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or
both." Congress has also made it a crime to conspire to commit any of the offenses listed in 18 U.S.C. 793 (e).

It is true that Judge Gurfein found that Congress had not made it a crime to publish the items and material
specified in 793 (e). He found that the words "communicates, delivers, transmits . . ." did not refer to publication
of newspaper stories. And that view has some support in the legislative history and conforms with the past
practice of using the statute only to prosecute those charged with ordinary espionage. But see 103 Cong. Rec.
10449 (remarks of Sen. Humphrey). Judge Gurfein's view of the statute is not, however, the only plausible
construction that could be given. See my Brother WHITE'S concurring opinion.

Even if it is determined that the Government could not in good faith bring criminal prosecutions against the New
York Times and the Washington Post, it is clear that Congress has specifically rejected passing legislation that
would have clearly given the President the power he seeks here and made the current activity of the newspapers
unlawful. When Congress specifically declines to make conduct unlawful it is not for this Court [403 U.S. 713,
746] to redecide those issues - to overrule Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952).
On at least two occasions Congress has refused to enact legislation that would have made the conduct engaged in
here unlawful and given the President the power that he seeks in this case. In 1917 during the debate over the
original Espionage Act, still the basic provisions of 793, Congress rejected a proposal to give the President in time
of war or threat of war authority to directly prohibit by proclamation the publication of information relating to
national defense that might be useful to the enemy. The proposal provided that:

"During any national emergency resulting from a war to which the United States is a party, or from threat of such
a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation,
prohibit the publishing or communicating of, or the attempting to publish or communicate any information
relating to the national defense which, in his judgment, is of such character that it is or might be useful to the
enemy. Whoever violates any such prohibition shall be punished by a fine of not more than $10,000 or by
imprisonment for not more than 10 years, or both: Provided, That nothing in this section shall be construed to
limit or restrict any discussion, comment, or criticism of the acts or policies of the Government or its
representatives or the publication of the same." 55 Cong. Rec. 1763.
Congress rejected this proposal after war against Germany had been declared even though many believed that
there was a grave national emergency and that the threat of security leaks and espionage was serious. The
Executive Branch has not gone to Congress and requested that the decision to provide such power be
reconsidered. Instead, [403 U.S. 713, 747] the Executive Branch comes to this Court and asks that it be granted
the power Congress refused to give.

In 1957 the United States Commission on Government Security found that "[a]irplane journals, scientific
periodicals, and even the daily newspaper have featured articles containing information and other data which
should have been deleted in whole or in part for security reasons." In response to this problem the Commission
proposed that "Congress enact legislation making it a crime for any person willfully to disclose without proper
authorization, for any purpose whatever, information classified `secret' or `top secret,' knowing, or having
reasonable grounds to believe, such information to have been so classified." Report of Commission on
Government Security 619-620 (1957). After substantial floor discussion on the proposal, it was rejected. See 103
Cong. Rec. 10447-10450. If the proposal that Sen. Cotton championed on the floor had been enacted, the
publication of the documents involved here would certainly have been a crime. Congress refused, however, to
make it a crime. The Government is here asking this Court to remake that decision. This Court has no such
power.

Either the Government has the power under statutory grant to use traditional criminal law to protect the country
or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that Congress has
specifically refused to grant the authority the Government seeks from this Court. In either case this Court does
not have authority to grant the requested relief. It is not for this Court to fling itself into every breach perceived
by some Government official nor is it for this Court to take on itself the burden of enacting law, especially a law
that Congress has refused to pass.

I believe that the judgment of the United States Court of Appeals for the District of Columbia Circuit should [403
U.S. 713, 748] be affirmed and the judgment of the United States Court of Appeals for the Second Circuit should
be reversed insofar as it remands the case for further hearings.

[ Footnote 1 ] See n. 3, infra.

[ Footnote 2 ] But see Kent v. Dulles, 357 U.S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952).
[ Footnote 3 ] There are several other statutory provisions prohibiting and punishing the dissemination of
information, the disclosure of which Congress thought sufficiently imperiled national security to warrant that
result. These include 42 U.S.C. 2161 through 2166 relating to the authority of the Atomic Energy Commission to
classify and declassify "Restricted Data" ["Restricted Data" is a term of art employed uniquely by the Atomic
Energy Act]. Specifically, 42 U.S.C. 2162 authorizes the Atomic Energy Commission to classify certain
information. Title 42 U.S.C. 2274, subsection (a), provides penalties for a person who "communicates, transmits,
or discloses [restricted data] . . . with intent to injure the United States or with intent to secure an advantage to
any foreign nation . . . ." Subsection (b) of 2274 provides lesser penalties for one who "communicates, transmits,
or discloses" such information "with reason to believe such data will be utilized to injure the United States or to
secure an advantage to any foreign nation . . . ." Other sections of Title 42 of the United States Code dealing with
atomic energy prohibit and punish acquisition, removal, concealment, tampering with, alteration, mutilation, or
destruction of documents incorporating "Restricted Data" and provide penalties for employees and former
employees of the Atomic Energy Commission, the armed services, contractors and licensees of the Atomic
Energy Commission. Title 42 U.S.C. 2276, 2277. Title 50 U.S.C. App. 781, 56 Stat. 390, prohibits the making of
any sketch or other representation of military installations or any military equipment located on any
military [403 U.S. 713, 744] installation, as specified; and indeed Congress in the National Defense Act of 1940,
54 Stat. 676, as amended, 56 Stat. 179, conferred jurisdiction on federal district courts over civil actions "to
enjoin any violation" thereof. 50 U.S.C. App. 1152 (6). Title 50 U.S.C. 783 (b) makes it unlawful for any officers or
employees of the United States or any corporation which is owned by the United States to communicate material
which has been "classified" by the President to any person who that governmental employee knows or has reason
to believe is an agent or representative of any foreign government or any Communist organization.

MR. CHIEF JUSTICE BURGER, dissenting.

So clear are the constitutional limitations on prior restraint against expression, that from the time of Near v.
Minnesota, 283 U.S. 697 (1931), until recently in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), we
have had little occasion to be concerned with cases involving prior restraints against news reporting on matters
of public interest. There is, therefore, little variation among the members of the Court in terms of resistance to
prior restraints against publication. Adherence to this basic constitutional principle, however, does not make
these cases simple. In these cases, the imperative of a free and unfettered press comes into collision with another
imperative, the effective functioning of a complex modern government and specifically the effective exercise of
certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all
circumstances - a view I respect, but reject - can find such cases as these to be simple or easy.

These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No
District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member of this Court knows
all the facts.

Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of
no restraint in any circumstances or for any reason, are really in a position to act?

I suggest we are in this posture because these cases have been conducted in unseemly haste. MR. JUSTICE
HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been
processed and I need not restate them. The prompt [403 U.S. 713, 749] setting of these cases reflects our
universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste.
Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date
it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and
deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting
trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue.

The newspapers make a derivative claim under the First Amendment; they denominate this right as the public
"right to know"; by implication, the Times asserts a sole trusteeship of that right by virtue of its journalistic
"scoop." The right is asserted as an absolute. Of course, the First Amendment right itself is not an absolute, as
Justice Holmes so long ago pointed out in his aphorism concerning the right to shout "fire" in a crowded theater
if there was no fire. There are other exceptions, some of which Chief Justice Hughes mentioned by way of
example in Near v. Minnesota. There are no doubt other exceptions no one has had occasion to describe or
discuss. Conceivably such exceptions may be lurking in these cases and would have been flushed had they been
properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this
importance should be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation,
especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice,
deferred publication. 1 [403 U.S. 713, 750]

It is not disputed that the Times has had unauthorized possession of the documents for three to four months,
during which it has had its expert analysts studying them, presumably digesting them and preparing the material
for publication. During all of this time, the Times, presumably in its capacity as trustee of the public's "right to
know," has held up publication for purposes it considered proper and thus public knowledge was delayed. No
doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater
volume of material would inevitably take time and the writing of good news stories takes time. But why should
the United States Government, from whom this information was illegally acquired by someone, along with all the
counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the
alleged "right to know" has somehow and suddenly become a right that must be vindicated instanter.

Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of
secret material, to give the Government an opportunity to review the entire collection and determine whether
agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the
material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach -
one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press -
the newspapers and Government might well have narrowed [403 U.S. 713, 751] the area of disagreement as to
what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary. To me
it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform
one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property
or secret government documents. That duty, I had thought - perhaps naively - was to report forthwith, to
responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course
followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues. If
the action of the judges up to now has been correct, that result is sheer happenstance. 2

Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District Court
before it had made a complete record pursuant to the mandate of the Court of Appeals for the Second Circuit.

The consequence of all this melancholy series of events is that we literally do not know what we are acting on. As
I see it, we have been forced to deal with litigation concerning rights of great magnitude without an adequate
record, and surely without time for adequate treatment either in the prior proceedings or in this Court. It is
interesting to note that counsel on both sides, in oral argument before this Court, were frequently unable to
respond to questions on factual points. Not surprisingly they pointed out that they had been working literally
"around the clock" and simply were unable to review the documents that give rise to these cases and [403 U.S.
713, 752] were not familiar with them. This Court is in no better posture. I agree generally with MR. JUSTICE
HARLAN and MR. JUSTICE BLACKMUN but I am not prepared to reach the merits. 3

I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the trial
aborted by our grant of certiorari, meanwhile preserving the status quo in the Post case. I would direct that the
District Court on remand give priority to the Times case to the exclusion of all other business of that court but I
would not set arbitrary deadlines.

I should add that I am in general agreement with much of what MR. JUSTICE WHITE has expressed with
respect to penal sanctions concerning communication or retention of documents or information relating to the
national defense.

We all crave speedier judicial processes but when judges are pressured as in these cases the result is a parody of
the judicial function.

[ Footnote 1 ] As noted elsewhere the Times conducted its analysis of the 47 volumes of Government documents
over a period of several months and did so with a degree of security that a government might envy. Such security
was essential, of course, to protect the enterprise [403 U.S. 713, 750] from others. Meanwhile the Times has
copyrighted its material and there were strong intimations in the oral argument that the Times contemplated
enjoining its use by any other publisher in violation of its copyright. Paradoxically this would afford it a
protection, analogous to prior restraint, against all others - a protection the Times denies the Government of the
United States.

[ Footnote 2 ] Interestingly the Times explained its refusal to allow the Government to examine its own purloined
documents by saying in substance this might compromise its sources and informants! The Times thus asserts a
right to guard the secrecy of its sources while denying that the Government of the United States has that power.

[ Footnote 3 ] With respect to the question of inherent power of the Executive to classify papers, records, and
documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for
enforcement, there may be an analogy with respect to this Court. No statute gives this Court express power to
establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have
little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by
whatever judicial measures may be required.

MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, dissenting.

These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in Northern Securities
Co. v. United States, 193 U.S. 197, 400 -401 (1904):

"Great cases like hard cases make bad law. For great cases are called great, not by reason of their [403 U.S. 713,
753] real importance in shaping the law of the future, but because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of
hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled
principles of law will bend."
With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases.

Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia Circuit
rendered judgment on June 23. The New York Times' petition for certiorari, its motion for accelerated
consideration thereof, and its application for interim relief were filed in this Court on June 24 at about 11 a. m.
The application of the United States for interim relief in the Post case was also filed here on June 24 at about 7:15
p. m. This Court's order setting a hearing before us on June 26 at 11 a. m., a course which I joined only to avoid
the possibility of even more peremptory action by the Court, was issued less than 24 hours before. The record in
the Post case was filed with the Clerk shortly before 1 p. m. on June 25; the record in the Times case did not
arrive until 7 or 8 o'clock that same night. The briefs of the parties were received less than two hours before
argument on June 26.

This frenzied train of events took place in the name of the presumption against prior restraints created by the
First Amendment. Due regard for the extraordinarily important and difficult questions involved in these
litigations should have led the Court to shun such a precipitate timetable. In order to decide the merits of these
cases properly, some or all of the following questions should have been faced:

1. Whether the Attorney General is authorized to bring these suits in the name of the United States.
Compare [403 U.S. 713, 754] In re Debs, 158 U.S. 564 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579 (1952). This question involves as well the construction and validity of a singularly opaque statute - the
Espionage Act, 18 U.S.C. 793 (e).

2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present
a serious threat to national security. See Near v. Minnesota, 283 U.S. 697, 716 (1931) (dictum).

3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to
justify an injunction on the theory that regardless of the contents of the documents harm enough results simply
from the demonstration of such a breach of secrecy.

4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the national
security.

5. What weight should be given to the opinion of high officers in the Executive Branch of the Government with
respect to questions 3 and 4.

6. Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly
uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the
Government's possession and that the newspapers received them with knowledge that they had been feloniously
acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129 U.S. App. D.C. 74, 390 F.2d 489 (1967, amended 1968).

7. Whether the threatened harm to the national security or the Government's possessory interest in the
documents justifies the issuance of an injunction against publication in light of -

a. The strong First Amendment policy against prior restraints on publication; [403 U.S. 713, 755]

b. The doctrine against enjoining conduct in violation of criminal statutes; and

c. The extent to which the materials at issue have apparently already been otherwise disseminated.

These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision
are enormous. The time which has been available to us, to the lower courts, * and to the parties has been wholly
inadequate for giving these cases the kind of consideration they deserve. It is a reflection on the stability of the
judicial process that these great issues - as important as any that have arisen during my time on the Court -
should have been decided under the pressures engendered by the torrent of publicity that has attended these
litigations from their inception.

Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court. Within
the severe limitations imposed by the time constraints under which I have been required to operate, I can only
state my reasons in telescoped form, even though in different circumstances I would have felt constrained to deal
with the cases in the fuller sweep indicated above.

It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in the Times litigation to observe
that its order must rest on the conclusion that because of the time elements the Government had not been given
an adequate opportunity to present its case [403 U.S. 713, 756] to the District Court. At the least this conclusion
was not an abuse of discretion.

In the Post litigation the Government had more time to prepare; this was apparently the basis for the refusal of
the Court of Appeals for the District of Columbia Circuit on rehearing to conform its judgment to that of the
Second Circuit. But I think there is another and more fundamental reason why this judgment cannot stand - a
reason which also furnishes an additional ground for not reinstating the judgment of the District Court in the
Times litigation, set aside by the Court of Appeals. It is plain to me that the scope of the judicial function in
passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very
narrowly restricted. This view is, I think, dictated by the concept of separation of powers upon which our
constitutional system rests.

In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then a member of that
body, stated:

"The President is the sole organ of the nation in its external relations, and its sole representative with foreign
nations." 10 Annals of Cong. 613 (1800).
From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this
description of the scope of executive power. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 -321
(1936), collecting authorities.

From this constitutional primacy in the field of foreign affairs, it seems to me that certain conclusions necessarily
follow. Some of these were stated concisely by President Washington, declining the request of the House of
Representatives for the papers leading up to the negotiation of the Jay Treaty:

"The nature of foreign negotiations requires caution, and their success must often depend on secrecy;[403 U.S.
713, 757] and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a
pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief,
in relation to other powers." 1 J. Richardson, Messages and Papers of the Presidents 194-195 (1896).
The power to evaluate the "pernicious influence" of premature disclosure is not, however, lodged in the Executive
alone. I agree that, in performance of its duty to protect the values of the First Amendment against political
pressures, the judiciary must review the initial Executive determination to the point of satisfying itself that the
subject matter of the dispute does lie within the proper compass of the President's foreign relations power.
Constitutional considerations forbid "a complete abandonment of judicial control." Cf. United States v.
Reynolds, 345 U.S. 1, 8 (1953). Moreover, the judiciary may properly insist that the determination that disclosure
of the subject matter would irreparably impair the national security be made by the head of the Executive
Department concerned - here the Secretary of State or the Secretary of Defense - after actual personal
consideration by that officer. This safeguard is required in the analogous area of executive claims of privilege for
secrets of state. See id., at 8 and n. 20; Duncan v. Cammell, Laird & Co., 1942. A. C. 624, 638 (House of Lords).

But in my judgment the judiciary may not properly go beyond these two inquiries and redetermine for itself the
probable impact of disclosure on the national security.

"[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions[403 U.S. 713,
758] are wholly confided by our Constitution to the political departments of the government, Executive and
Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are
decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long
been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Chicago &
Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (Jackson, J.).
Even if there is some room for the judiciary to override the executive determination, it is plain that the scope of
review must be exceedingly narrow. I can see no indication in the opinions of either the District Court or the
Court of Appeals in the Post litigation that the conclusions of the Executive were given even the deference owing
to an administrative agency, much less that owing to a co-equal branch of the Government operating within the
field of its constitutional prerogative.

Accordingly, I would vacate the judgment of the Court of Appeals for the District of Columbia Circuit on this
ground and remand the case for further proceedings in the District Court. Before the commencement of such
further proceedings, due opportunity should be afforded the Government for procuring from the Secretary of
State or the Secretary of Defense or both an expression of their views on the issue of national security. The
ensuing review by the District Court should be in accordance with the views expressed in this opinion. And for
the reasons stated above I would affirm the judgment of the Court of Appeals for the Second Circuit.

Pending further hearings in each case conducted under the appropriate ground rules, I would continue the [403
U.S. 713, 759] restraints on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to
the point of preventing courts from maintaining the status quo long enough to act responsibly in matters of such
national importance as those involved here.

[ Footnote * ] The hearing in the Post case before Judge Gesell began at 8 a. m. on June 21, and his decision was
rendered, under the hammer of a deadline imposed by the Court of Appeals, shortly before 5 p. m. on the same
day. The hearing in the Times case before Judge Gurfein was held on June 18 and his decision was rendered on
June 19. The Government's appeals in the two cases were heard by the Courts of Appeals for the District of
Columbia and Second Circuits, each court sitting en banc, on June 22. Each court rendered its decision on the
following afternoon.

MR. JUSTICE BLACKMUN, dissenting.

I join MR. JUSTICE HARLAN in his dissent. I also am in substantial accord with much that MR. JUSTICE
WHITE says, by way of admonition, in the latter part of his opinion.

At this point the focus is on only the comparatively few documents specified by the Government as critical. So far
as the other material - vast in amount - is concerned, let it be published and published forthwith if the
newspapers, once the strain is gone and the sensationalism is eased, still feel the urge so to do.

But we are concerned here with the few documents specified from the 47 volumes. Almost 70 years ago Mr.
Justice Holmes, dissenting in a celebrated case, observed:

"Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance
in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals
to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure . . . ."
Northern Securities Co. v. United States, 193 U.S. 197, 400 -401 (1904).
The present cases, if not great, are at least unusual in their posture and implications, and the Holmes observation
certainly has pertinent application.

The New York Times clandestinely devoted a period of three months to examining the 47 volumes that came into
its unauthorized possession. Once it had begun publication [403 U.S. 713, 760] of material from those volumes,
the New York case now before us emerged. It immediately assumed, and ever since has maintained, a frenetic
pace and character. Seemingly, once publication started, the material could not be made public fast enough.
Seemingly, from then on, every deferral or delay, by restraint or otherwise, was abhorrent and was to be deemed
violative of the First Amendment and of the public's "right immediately to know." Yet that newspaper stood
before us at oral argument and professed criticism of the Government for not lodging its protest earlier than by a
Monday telegram following the initial Sunday publication.

The District of Columbia case is much the same.

Two federal district courts, two United States courts of appeals, and this Court - within a period of less than three
weeks from inception until today - have been pressed into hurried decision of profound constitutional issues on
inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should
characterize the American judicial process. There has been much writing about the law and little knowledge and
less digestion of the facts. In the New York case the judges, both trial and appellate, had not yet examined the
basic material when the case was brought here. In the District of Columbia case, little more was done, and what
was accomplished in this respect was only on required remand, with the Washington Post, on the excuse that it
was trying to protect its source of information, initially refusing to reveal what material it actually possessed, and
with the District Court forced to make assumptions as to that possession.

With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a lawsuit of this
magnitude and asserted importance. It is not the way for federal courts to adjudicate, and to be required to
adjudicate, issues that allegedly concern the Nation's [403 U.S. 713, 761] vital welfare. The country would be
none the worse off were the cases tried quickly, to be sure, but in the customary and properly deliberative
manner. The most recent of the material, it is said, dates no later than 1968, already about three years ago, and
the Times itself took three months to formulate its plan of procedure and, thus, deprived its public for that
period.
The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests
in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the
responsibility for the Nation's safety. Each provision of the Constitution is important, and I cannot subscribe to a
doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. First
Amendment absolutism has never commanded a majority of this Court. See, for example, Near v. Minnesota, 283
U.S. 697, 708 (1931), and Schenck v. United States, 249 U.S. 47, 52 (1919). What is needed here is a weighing, upon
properly developed standards, of the broad right of the press to print and of the very narrow right of the
Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what
those standards should be. But even the newspapers concede that there are situations where restraint is in order
and is constitutional. Mr. Justice Holmes gave us a suggestion when he said in Schenck,

"It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace
are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court
could regard them as protected by any constitutional right." 249 U.S., at 52 .
I therefore would remand these cases to be developed expeditiously, of course, but on a schedule permitting
the [403 U.S. 713, 762] orderly presentation of evidence from both sides, with the use of discovery, if necessary,
as authorized by the rules, and with the preparation of briefs, oral argument, and court opinions of a quality
better than has been seen to this point. In making this last statement, I criticize no lawyer or judge. I know from
past personal experience the agony of time pressure in the preparation of litigation. But these cases and the
issues involved and the courts, including this one, deserve better than has been produced thus far.

It may well be that if these cases were allowed to develop as they should be developed, and to be tried as lawyers
should try them and as courts should hear them, free of pressure and panic and sensationalism, other light would
be shed on the situation and contrary considerations, for me, might prevail. But that is not the present posture of
the litigation.

The Court, however, decides the cases today the other way. I therefore add one final comment.

I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate
responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia case, after a
review of only the affidavits before his court (the basic papers had not then been made available by either party),
concluded that there were a number of examples of documents that, if in the possession of the Post, and if
published, "could clearly result in great harm to the nation," and he defined "harm" to mean "the death of
soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability
of our diplomats to negotiate . . . ." I, for one, have now been able to give at least some cursory study not only to
the affidavits, but to the material itself. I regret to say that from this examination I fear that Judge Wilkey's
statements have possible foundation. I therefore share [403 U.S. 713, 763] his concern. I hope that damage has
not already been done. If, however, damage has been done, and if, with the Court's action today, these
newspapers proceed to publish the critical documents and there results therefrom "the death of soldiers, the
destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our
diplomats to negotiate," to which list I might add the factors of prolongation of the war and of further delay in
the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad
consequences rests.

G.R. No. 102653 March 5, 1992

NATIONAL PRESS CLUB, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
G.R. No. 102925 March 5, 1992
PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO, JR., as its Past Chairman and
President, and FRAULIN A. PEÑASALES as its Corporate Secretary, petitioners,
vs.
COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN MONSOD, its Chairman; HON.
GUILLERMO CARAGUE and HON. ROSALINA S. CAJUCOM, respondents.
G.R. No. 102983 March 5, 1992
KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI BROADCASTING NETWORK;
MOLAVE BROADCASTING NETWORK; MASBATE COMMUNITY BROADCASTING CO., INC., RADIO
MINDANAO NETWORK, INC.; ABS-CBN BROADCASTING CORP.; FILIPINAS BROADCASTING;
RADIO PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE BROADCASTING CORP.;
MAGILIW COMMUNITY BROADCASTING CO., INC.; for themselves and in behalf of the mass media
owners as a class; ANDRE S. KHAN; ARCADIO M. CARANDANG, JR.; MALOU ESPINOSA
MANALASTAS; MIGUEL C. ENRIQUEZ; JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE
E. ESCANER, JR.; RAY G. PEDROCHE; PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDO
RAMIREZ; for themselves as voters and in behalf of the Philippine electorate as a class; ORLANDO S.
MERCADO and ALEJANDRO de G. RODRIGUEZ; for themselves as prospective candidates and in behalf of
all candidates in the May 1992 election as a class, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

FELICIANO, J.:
In the three (3) consolidated Petitions before us, the common question raised by petitioners is the constitutionality of
Section 11 (b) of Republic Act No. 6646.
Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating
space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the
other for provincial office) in the coming May 1992 elections; and taxpayers and voters who claim that their right to
be informed of election issues and of credentials of the candidates is being curtailed.
It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and violates the
constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by
Section 11 (b) amounts to censorship, because it selects and singles out for suppression and repression with criminal
sanctions, only publications of a particular content, namely, media-based election or political propaganda during the
election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide
adequate channels of public information and public opinion relevant to election issues. Further, petitioners contend
that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or
political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio
and television broadcasts, would bring about a substantial reduction in the quantity or volume of information
concerning candidates and issues in the election thereby curtailing and limiting the right of voters to information and
opinion.
The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of Republic Act
No. 6646, known as the Electoral Reforms Law of 1987:
Sec. 11 Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful;
xxx xxx xxx
b) for any newspapers, radio broadcasting or television station, other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
 other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of absence from his work as such during the
campaign period. (Emphasis supplied)
Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P. Blg. 881, known as
the Omnibus Election Code of the Philippines, which provide respectively as follows:
Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall
be allocated, free of charge, equally and impartially by the Commission among all candidates within
the area in which the newspaper is circulated.
xxx xxx xxx
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the
area of coverage of all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide radio or television time, free
of charge, during the period of the campaign. (Emphasis supplied)
The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of rich and poor
candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests."
Section 11 (b) prohibits the sale or donation of print space and air time "for campaign or other political purposes"
except to the Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the Omnibus
Election Code require the Comelec to procure "Comelec space" in newspapers of general circulation in every province
or city and "Comelec time" on radio and television stations. Further, the Comelec is statutorily commanded to allocate
"Comelec space" and "Comelec time" on a free of charge, equal and impartial basis among all candidates within the
area served by the newspaper or radio and television station involved.
No one seriously disputes the legitimacy or the importance of the objective sought to be secured by Section 11 (b) (of
Republic Act No. 6646) in relation to Sections 90 and 92 (of the Omnibus Election Code). That objective is of special
importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution
between the economic elite and the rest of society, and by the prevalence of poverty, with the bulk of our population
falling below that "poverty line." It is supremely important, however, to note that objective is not only a concededly
legitimate one; it has also been given constitutional status by the terms of Article IX(C) (4) of the 1987 Constitution
which provides as follows:
Sec. 4. The Commission [on Elections] may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor,for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful, and
credible elections. (Emphasis supplied)
The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or
utilization of the franchises or permits for the operation of media of communication and information. The fundamental
purpose of such "supervision or regulation" has been spelled out in the Constitution as the ensuring of "equal
opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of
such media facilities, in connection with "public information campaigns and forums among candidates." 1
It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of
expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C)
(4) which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election
period." It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the
press in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the
process by which the people identify those who shall have governance over them. Thus, it is frequently said that these
rights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press
are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities.
In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial
resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given
constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall
guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law." 2
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises
in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing
equal opportunity among candidates for political office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press. For supervision or regulation of the operations of media
enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general,
time-honored one — that a statute is presumed to be constitutional and that the party asserting its unconstitutionality
must discharge the burden of clearly and convincingly proving that assertion. 3
Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the
police power of the State and the requisites for constitutionally valid exercise of that power. The essential question is
whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of
supervision or regulation of the operations of communication and information enterprises during an election period, or
whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute
unconstitutional repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has
not gone outside the permissible bounds of supervision or regulation of media operations during election periods.
In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of the limitations
resulting from the particular measure being assayed upon freedom of speech and freedom of the press are essential
considerations. It is important to note that the restrictive impact upon freedom of speech and freedom of the press of
Section 11 (b) is circumscribed by certain important limitations.
Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of
Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. By its
Resolution No. 2328 dated 2 January 1992, the Comelec, acting under another specific grant of authority by the
Constitution (Article IX [C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as the relevant
election period.
Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows
that it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, 4 of print
space and air time for "campaign or other political purposes." Section 11 (b) does not purport in any way to restrict the
reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their
qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries
and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect
of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs
are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as
reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for
political office. We read Section 11 (b) as designed to cover only paid political advertisements of particular
candidates.
The above limitation in scope of application of Section 11 (b) — that it does not restrict either the reporting of or the
expression of belief or opinion or comment upon the qualifications and programs and activities of any and all
candidates for office — constitutes the critical distinction which must be made between the instant case and that
ofSanidad v. Commission on Elections.5 In Sanidad, the Court declared unconstitutional Section 19 of Comelec
Resolution No. 2167 which provided as follows:
Sec. 19. Prohibition on Columnists, Commentators or Announcers — During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer
or personality shall use his column or radio or television time to campaign for or against the
plebiscite issues.
Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite mandated by R.A. No.
6766 on the ratification or adoption of the Organic Act for the Cordillera Autonomous Region. The Court held that
Resolution No. 2167 constituted a restriction of the freedom of expression of petitioner Sanidad, a newspaper
columnist of the Baguio Midland Courier, "for no justifiable reason." The Court, through Medialdea, J., said:
. . . [N]either Article, IX-C of the Constitution nor Section 11 [b], 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during plebiscite
periods.Media practitioners exercising their freedom of expression during plebiscite periods are
neither the franchise holders nor the candidates. In fact, there are no candidates involved in the
plebiscite.Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory
basis." 6 (Emphasis partly in the original and partly supplied)
There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts from its prohibition
the purchase by or donation to the Comelec of print space or air time, which space and time Comelec is then
affirmatively required to allocate on a fair and equal basis, free of charge, among the individual candidates for elective
public offices in the province or city served by the newspaper or radio or television station. Some of the petitioners are
apparently apprehensive that Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal
basis among the several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by
unequal or unfair allocations effected by Comelec will have appropriate judicial remedies available, so long at least as
this Court sits. Until such time, however, the Comelec is entitled to the benefit of the presumption that official duty
will be or is being regularly carried out. It seems appropriate here to recall what Justice Laurel taught in Angara v.
Electoral Commission7 that the possibility of abuse is no argument against the concession of the power or authority
involved, for there is no power or authority in human society that is not susceptible of being abused. Should it be
objected that the Comelec might refrain from procuring "Comelec time" and "Comelec space," much the same
considerations should be borne in mind. As earlier noted, the Comelec is commanded by statute to buy or "procure"
"Comelec time" and "Comelec space" in mass media, and it must be presumed that Comelec will carry out that
statutory duty in this connection, and if it does fail to do so, once again, the candidate or candidates who feel
aggrieved have judicial remedies at their disposal.
The points that may appropriately be underscored are that Section 11 (b) does not cut off the flow of media reporting,
opinion or commentary about candidates, their qualifications and platforms and promises. Newspaper, radio
broadcasting and television stations remain quite free to carry out their regular and normal information and
communication operations. Section 11 (b) does not authorize any intervention and much less control on the part of
Comelec in respect of the content of the normal operations of media, nor in respect of the content of political
advertisements which the individual candidates are quite free to present within their respective allocated Comelec
time and Comelec space. There is here no "officious functionary of [a] repressive government" dictating what events
or ideas reporters, broadcasters, editors or commentators may talk or write about or display on TV screens. There is
here no censorship, whether disguised or otherwise. What Section 11 (b), viewed in context, in fact does is to
limit paid partisan political advertisements to for a other than modern mass media, and to "Comelec time" and
"Comelec space" in such mass media.
Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves.
The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article
IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio
and television time that the resources of the financially affluent candidates are likely to make a crucial difference.
Here lies the core problem of equalization of the situations of the candidates with deep pockets and the candidates
with shallow or empty pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the
statutory mechanism which Section 11 (b) brings into operation is designed and may be expected to bring about or
promote equal opportunity, and equal time and space, for political candidates to inform all and sundry about
themselves, cannot be gainsaid.
My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial disparity among the candidates is
a fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a
common maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying
mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to
his strained rival." True enough Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of the
Omnibus Election Code, place political candidates on complete and perfect equalityinter se without regard to their
financial affluence or lack thereof. But a regulatory measure that is less than perfectly comprehensive or which does
not completely obliterate the evil sought to be remedied, is not for that reason alone constitutionally infirm. The
Constitution does not, as it cannot, exact perfection in governmental regulation. All it requires, in accepted doctrine, is
that the regulatory measure under challenge bear a reasonable nexus with the constitutionally sanctioned objective.
That the supervision or regulation of communication and information media is not, in itself, a forbidden modality is
made clear by the Constitution itself in Article IX (C) (4).
It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech of the
candidates themselves may be seen to be not unduly repressive or unreasonable. For, once again, there is nothing in
Section 11 (b) to prevent media reporting of and commentary on pronouncements, activities, written statements of the
candidates themselves. All other fora remain accessible to candidates, even for political advertisements. The requisites
of fairness and equal opportunity are, after all, designed to benefit the candidates themselves.
Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be totally
disregarded. Realistically, the only limitation upon the free speech of candidates imposed is on the right of candidates
to bombard the helpless electorate with paid advertisements commonly repeated in the mass media ad
nauseam. Frequently, such repetitive political commercials when fed into the electronic media themselves constitute
invasions of the privacy of the general electorate. It might be supposed that it is easy enough for a person at home
simply to flick off his radio of television set. But it is rarely that simple. For the candidates with deep pockets may
purchase radio or television time in many, if not all, the major stations or channels. Or they may directly or indirectly
own or control the stations or channels themselves. The contemporary reality in the Philippines is that, in a very real
sense, listeners and viewers constitute a "captive audience." 8
The paid political advertisement introjected into the electronic media and repeated with mind-deadening frequency, are commonly intended and crafted, not so much to inform
and educate as to condition and manipulate, not so much to provoke rational and objective appraisal of candidates' qualifications or programs as to appeal to the non-intellective
faculties of the captive and passive audience. The right of the general listening and viewing public to be free from such intrusions and their subliminal effects is at least as
important as the right of candidates to advertise themselves through modern electronic media and the right of media enterprises to maximize their revenues from the marketing of
"packaged" candidates.

WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No pronouncement as to
costs.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Bidin, Griño-Aquino, Medialdea, Regalado, Romero and Nocon, JJ., concur.
Bellosillo, J., took no part.

Separate Opinions

DAVIDE, JR., J.: concurring:

I fully concur with the majority opinion. I wish, however, to express my thoughts on some material points.
The constitutional issue raised in these cases must be decided in the light of the provisions of our own Constitution
and not on orthodox principles or classical definitions of certain rights which have, in the course of time and as a
result of the interplay of societal forces requiring the balancing of interests and values, been unchained from their
absolutist moorings.
It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is
not an absolute right.
Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the right or privilege
of free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its
limitations; the right is not absolute at all times and under all circumstances, although limitations are recognized only
in exceptional cases. Freedom of speech does not comprehend the right to speak whenever, however, and wherever
one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled."1
The foregoing rule proceeds from the principle that every right or freedom carries with it the correlative duty to
exercise it responsibly and with due regard for the right and freedoms of others. In short, freedom is not freedom from
responsibility, but with responsibility.
I respectfully submit that there can be no higher form of limitation to a right than what the Constitution itself
authorizes. On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of speech or expression
and of the press vis-a-vis the electoral process, the present Constitution lays downs certain principles authorizing
allowable restraints thereon. I refer to the. following provisions of the 1987 Constitution, to wit:
(1) Section 26 of Article II. (Declaration of Principle and other Policies) which reads:
The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (emphasis supplied)
(2) Section 1 of Article XIII (Social Justice and Human rights) which reads:
The congress shall give highiest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic,
andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth andpolitical power for the common good. (emphasis supplied)
(3) Section 4 of Article IX-C which provides:
The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary.Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections. (emphasis supplied)
There can be no doubt that the first two (2) provisions contemplate measures that would bridge the gap between the
rich and the poor in our society. In the past, the equilibrium sought to be achieved was only in the economic and social
fields. Thus, before the advent of the 1987 Constitution, social justice was defined as:
Social Justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so that justice
in its rational and objectively secular conception may at least be approximated. Social justice means
the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the existence of all governments on the
time-honored principle ofsalus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and evenly
extended to all groups as a combined force in our social and economic life, consistent with the
fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest good to the greatest number." 2
Aware of the lamentable fact that in the Philippines, no gap between these two unavoidable extremes of society is
more pronounced than in the field of politics, and ever mindful of the dire consequences thereof, the framers of the
present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the
elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an
exception. Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting
chance. Of course, there have been isolated instances — but yet so few and far between — when poor candidates
made it.
Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focusing strictly on the
legitimate aspect of the electoral struggle, propaganda, through the various forms of media, provides the most
sophisticated and effective means of reaching the electorate and convincing voters to vote for a particular candidate. It
is in this area, particularly in the use of television, radio and newspaper, that a poor candidate will not be able to
compete with his opulent opponents who have all the resources to buy prime television and radio time and full pages
of leading newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely relax in
their homes, offices or hotel suites, can reach every nook and cranny of their municipality, city, province, district or
even the entire Philippines and be seen or heard at any time of the day and night. During the contracted hours, their
paid hacks can concentrate on dishonoring the poor and hapless opponent by hurling innuendoes of defects or vice.
With newspaper advertisements, the wealthy candidates can reach thousands of readers daily. A worse scenario
obtains where the rich candidates themselves fully or substantially own or operate a television or radio station, or
publish newspapers. On the other hand, to a poor candidate, the campaign period would sadly prove to be insufficient
for him to campaign in every barangay, even if he is running for a municipal position. Thus, not only would he already
be at a disadvantage insofar as visibility and presentation of his issues or program of government are concerned, he
would have no opportunity to rebut whatever lies his opponents may spread nor the chance to clear himself of false
accusations.
Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress passed a measure,
R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, 3 introducing additional reforms to the
electoral system which, inter alia, not only seeks to enhance the purity of the electoral process, but also aspires to
ensure even just an approximation of equality among all candidates in their use of media for propaganda purposes.
The latter is best evidenced by the provision challenged in this case, Section 11 (b), which reads:
Section 11. Prohibited forms of election propaganda. — In addition to the forms of propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign period.
This provision, understood in the light of Section 4, Article IX-C of the Constitution, is a reasonable regulation
enacted to accomplish the desired objectives and purposes earlier mentioned. It neither constitutes proscribed
abridgment of the freedom of expression nor prohibits free speech; it merely provides the rules as to the manner, time
and place for its exercise during a very limited period. It makes reference to Sections 90 and 92 of Batas Pambansa
Blg. 881 on "COMELEC time" and "COMELEC space." Said sections read in full as follows:
Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated. (Sec. 45, 1978 EC)
xxx xxx xxx
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the
area of coverage of all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide radio or television time, free
of charge, during the period of the campaign. (Sec. 46, 1978 EC)
Obviously then, the airing and printing of a candidate's political advertisements can be done — and is even
encouraged to be done — during the "COMELEC time" and within the "COMELEC space." This authority of the
COMELEC is no longer purely statutory. It is now constitutional pursuant to the clear mandate of Section 4 of Article
IX-C, which is quoted above. This constitutional grant removes whatever doubt one may have on the split verdict of
this Court in Badoy vs. Ferrer, et al., 4 Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the area in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all
the names of all other candidates in the district in which the candidate is running are also mentioned
with equal prominence.
this Court ruled:
Against the background of such facilities accorded by the law for all candidates, rich and poor alike,
and the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration
and the equality or chances among the candidates, the restriction on the freedom of expression of the
candidate or any other individual prescribed in par. F of Sec. 12 is so narrow as not to affect the
substance and vitality of his freedom of expression itself.
xxx xxx xxx
Hence, consistent with out opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs.
Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F Sec. 12, it only one of the many devices employed by the law
to prevent a clear and present danger of the perversion or prostitution of the electoral apparatus and
of the denial of the equal protection of the laws.
The fears and apprehensions of petitioner concerning his liberty of expression in these two cases,
applying the less stringent balancing -of-interests criterion, are far outweighed by the all important
substantive interests of the State to preserve the purity of the ballot and to render more meaningful
and real the guarantee of the equal protection of the laws.
In the fairly recent case of Sanidad vs. Commission on Elections, 5 this Court sustained, in effect, the validity of
Section 11(b) of R.A. No. 6646. Thus:
However, it is clear from Act. IX-C of the 1987 Constitution that what was granted to the Comelec
was the power to supervise and regulate the use and enjoyment of franchises, permits or other
grantsissued for the operation of transportation or other public utilities, media of communication or
information to the end that equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates are
ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder
may favor or give any undue advantage to a candidate in terms of advertising space or radio or
television time. This is also the reason why a columnist, commentator, announcer or personality, who
is a candidate for any elective office is required to take a leave of absence from his work during the
campaign period (2nd par. Section 11 (b) R.A. 6646). It cannot be gainsaid that a columnist or
commentator who is also a candidate would be more exposed to the voters to the prejudice of other
candidates unless required to take a leave of absence.
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during plebiscite periods.
Media practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite.
Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition
is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the
electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented
 in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes
are taken in an area on some special political matter unlike in an election where votes are cast in
favor of specific persons for some office. In other words, the electorate is asked to vote for or against
issues, not candidates in a plebiscite.
Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged provision, the
doubt must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs. Executive Secretary,
et al.: 6
. . . it is in accordance with the settled doctrine that between two possible constructions, one avoiding
a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That
which will save, not that which will destroy, commends itself for acceptance. After all, the basic
presumption all these years is one of validity. The onerous task of proving otherwise is on the party
seeking to nullify a statute. It must be proved by clear and convincing evidence that there is an
infringement of a constitutional provision, save in those cases where the challenged act is void on its
face. Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-
founded, does not suffice. Justice Malcolm's aphorism is apropos: "To doubt is to sustain." 7
The reason for this is that an act of the legislature approved by the executive is presumed to be within constitutional
bounds. The responsibility of upholding the Constitution rests not only on the courts, but also on the legislature and
the executive as well.
For the Court to strike our their acts as unconstitutional, nothing less than clear and convincing evidence of such
breach of the Constitution must be shown.
Petitioners have not acquitted themselves of that duty. The petitions then must be dismissed for lack of merit.

PADILLA, J.: concurring:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.
Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987," challenged in these
petitions, states that:
Sec. 11. Prohibited Forms of Election Propaganda — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign period.
Petitioners contend that the provision is void because it is violative of the freedoms of the press, speech and
expression as guaranteed by Article III, Section 4 of the Constitution.
But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate exercise of its
police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property,
(2) in order to foster the common good.
xxx xxx xxx
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable and individual citizen or a group of
 citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare." Significantly, the Bill of rights itself does not
purport to be an absolute guaranty of individual rights and liberties. "Even liberty itself, the greatest
of all rights, is not unrestricted license to act according to one's will." It is subject to the far more
overriding demands and requirements of the greater number. 1
Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this
reason, it is co-extensive with the necessities of the case and the safeguards of public interest. 2
In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal access to
opportunities for public service. 3 Opportunity to hold a public office for public service, particularly elective public
offices must be equally accessible to qualified and deserving citizens. Corollary to this, the legislature also recognizes
the power of the Commission on Elections (COMELEC) to supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of media of communication or information granted by the government or any
subdivision, agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefore, for public information campaigns
and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible
elections." 4
In Pablito V. Sanidad vs. The Commission on Elections, 5 we held that the evil sought to be prevented by Art. IX-C,
Section 4 of the Constitution is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time.
In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act
as an equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a
myriad of campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign
would result in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print
space and air time, and yet, they may be equally qualified and deserving candidates. In Anacleto D. Badoy, Jr. vs.
Jaime N. Ferrer, et al., G.R. NO.
L-32546, October 17, 1970, 35 SCRA 285, this Court declared Section 12(F) of R.A. No. 6132 valid and
constitutional, recognizing that the purpose of the limitation, on the freedom of the candidate or his sympathizer to
spend his own money for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give
the poor candidates a fighting chance in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize,
if not approximate, equality of chances among the various candidates for elective public office.
Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space or air time for
campaign or other political purposes, access to print space and air time would be given equally to all candidates.
Nevertheless, as opined by the COMELEC, the means to gain access to said time and space would be unequal among
all candidates. Hence, there would be in the final analysis, inequality.
Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign purposes will open the
floodgates to corruption in public office because a winning candidate who overspends during the election period must
necessarily recover his campaign expenses by "hook or crook". Section 11 of R.A. No. 6646 would indirectly
constitute a positive and effective measure against corruption in public office.
Petitioners also contend that the challenged provision is "violative of the people's right to information particularly
about the conduct of public officials including the character and qualifications of candidates seeking public office."
I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision in expressing
its mandate — no sufficient fora to detect and decide for themselves who, among the candidates truly deserve their
votes. 6
Aside from Sec. 11 (b) of R.A. No. 6646 providing for Comelec space and Comelec time, Sections 9 and 10 of the
same law afford a candidate several venues by which the can fully exercise his freedom of expression, including
freedom of assembly. The electorate, in turn, are given opportunities to know the candidates and be informed of their
qualifications and platforms.
As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan private or
civic organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for
the same office may simultaneously and personally participate to present, explain, and/or debate on their campaign
platforms and programs and other like issues. Section 10, on the other hand, allows the candidates the use of the
designated common poster areas to post, display and exhibit election propaganda to announce or further their
candidacy; not to mentioned the right to hold political caucuses. conferences, meetings, rallies, parades, or other
assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for a candidate;
publishing or distributing campaign literature or materials designed to support the election of any candidate; and
directly or indirectly solicit votes, pledges or support for a candidate. 7
In short, the law in question (Sec. 11, Rep. Act No. 6646) has been enacted for a legitimate public purpose and the
means it employs to achieve such purpose are reasonable and even timely.
Based on all the foregoing consideration, I vote to sustain the validity and constitutionality of Section II of R.A. No.
6646.
GUTIERREZ, JR., J., dissenting:
I am saddened by the readiness with which Congress, Comelec, and the members of this Court are willing to sacrifice
not only that most precious clause of the Bill of Rights — freedom of speech and of the press — but also the right of
every citizen to be informed in every way possible about the qualifications and programs of those running for public
office.
Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the voters ignorant of who the candidates are
and what they stand for.
With elections fast approaching, the surveys show that almost half of the nation's voters are undecided as to the
Presidency. Certainly, they do not know who are running for the Senate.
The implementation of Section 11 (b) will result in gross inequality. A cabinet member, an incumbent official, a movie
star, a basketball player, or a conspicuous clown enjoys an unfair advantage over a candidate many times better
qualified but lesser known.
I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio, former NBI
Director; Estelito P. Mendoza, former Solicitor General and Governor; and Florangel Rosario Braid, member of the
Constitutional Commission and distinguished mass communication personality (to name only three) are also running
for the Senate. We owe it to the masses to open all forms of communication to them during this limited campaign
period. A candidate to whom columnists and radio-television commentators owe past favors or who share their
personal biases and convictions will get an undue amount of publicity. Those who incur the ire of opinion makers
cannot counteract negative reporting by buying his own newspaper space or airtime for the airing of his refutations.
Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to the task keeping
registration lists clean and had to repeat the exercise in critical areas. It should now husband its resources for its real
function — insuring the integrity of the voting process and safeguarding the true results of the elections.
Why Comelec should also supervise the publicity campaigns of almost 100,00 candidates running for 17,000 national
and local positions is beyond my poor power to comprehend.
I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the fresh,
imaginative, and personal appeal of advertisements espousing a cause or reaching a particular audience.
Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed
during the limited period of the election campaign when information is most needed. Moreover, the mere thought that
published materials are supervised by a government office is enough to turn the reader off. Only faithful followers
who already know for whom they are voting will bother to read the statements of their chosen candidate in the
Comelec corner of the newspapers.
The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited period. The
amount which a political party or candidate may spend is restricted. Added to the confines of the limited
period andrestricted expenses, the law now imposes a violation of the candidates' freedom of speech and the voters'
freedom to know.
I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant style. We should
not allow the basic freedom of expression to be sacrificed at the alter of infinitely lesser fears and concerns. Under the
clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to
be avoided must be so substantive as to justify a clamp over one's mouth or, a writing instrument to be stilled.
In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one short of the 2/3
majority needed to invalidate the law) deemed a less restrictive statute as unconstitutional. The four (4) Justices who
allowed the law to remain did so only because there were various safeguards and provisos. Section 11(b) of R.A. No.
6646 now removes one of those safeguards.
The then Justice Fred Ruiz Castro stated:
What of the social value and importance of the freedoms impaired by Section 50-B? The legislation
strikes at the most basic political right of the citizens in a republican system, which is the right
actively to participate in the establishment or administration of government. This right finds
expression in multiple forms but it certainly embraces that right to influence the shape of policy and
law directly by the use of ballot. It has been said so many times it scarcely needs to be said again, that
the realization of the democratic ideal of self-government depends upon an informed and committed
electorate. This can be accomplished only by allowing the fullest measure of freedom in the public
discussion of candidates and the issues behind which they rally; to this end, all avenues of persuasion
— speech, press, assembly, organization — must be kept always open. It is in the context of the
electoral process that these fundamental rights secured by the Constitution assume the highest social
importance. (at page 904; Emphasis supplied)
I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the choice of the nation's
leaders. I vote to declare the challenged legislation unconstitutional.
CRUZ, J., dissenting:
It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is
nothing more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty
in another obeisance to the police state, which we so despised during the days of martial law. I cannot share in the
excuses of the Court because I firmly believe that the highest function of authority is to insure liberty.
In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. May
quarrel is with the way the objective is being pursued for I find the method a most indefensible repression. It does
little good, I should think, to invoke the regularity authority of the Commission on Elections, for that power is not a
license to violate the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject
to the requirements of the police power which the ponencia seems to disdain.
It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the
challenged at is presumed to be valid in deference to the political departments. But not — and this represents a
singular exception — where the act is claimed to violate individual liberty, most importantly the freedom of
expression. In such a vital and exceptional case, as in the case now before us, I respectfully submit that the
presumption must be reversed in favor of the challenge.
Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above
all liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the
communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights
include the equally important freedom of the press, the right of assembly and petition, the right to information on
matters of public concern, the freedom of religion insofar as it affects the right to form associations as an instrument
for the ventilation of views bearing on the public welfare.
Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the
quaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the
hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most
cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that
is first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of
the press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972.
The reason for this precaution is that freedom
of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be
wielded by every citizen in the
land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart
to use it.
As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and
suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a
duty. From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full
deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to
be the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options,
let alone the latitude with which they are considered, can insure a far better choice than that made by the heedless
dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.
The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are
communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression
protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify
meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of
belligerence. The individual can convey his message in a poem or a novel or a tract or in a public speech or through a
moving picture or a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be
heeded, for a acceptability will depend on the quilty of his thoughts and of his persona, as well as the mood and
motivation of his audience. But whatever form he employs, he is entitled to the protection of the Constitution against
any attempt to muzzle his thoughts.
There is one especially significant way by which the citizen can express his views, and that is through the ballot. By
the votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the
various elective offices in the government, from the highest position of President of the Philippines to that of the
lowly member of the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his
intelligence (or lack of it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any
other candidate with no known distinction except the presumptuousness to seek elective office. Fortunately, there are
also other candidates deserving of the support of the circumspect and thinking citizens who will use their suffrages
conscientiously with only the public interest as their criterion and guide.
It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they
are allowed to campaign during the election period. Such campaign includes their personally visiting the voters in
house-to-house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-
serving leaflets extolling their virtues, giving away buttons and stickers and sample ballots and other compaign
materials, and holding caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to
do in the specified places and at the proper time provided only that they do not exceed the maximum limit of election
expenses prescribed by the Election Code at the rate of P1.50 for every voter currently registered in the constituency
where they filed their certificate of candidacy. 1
It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the
prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or
placards or posters or meetings to reach the electorate, incurring for this purposes a not inconsiderable amount of his
or his supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of
mass communications, even for free. Employment of these facilities is allowed only through the respondent
Commission on Elections, which is directed by the Election Code to procure newspaper space and radio and television
time to be distributed among the thousands of candidates vying throughout the land for the thousands of public offices
to be filled in the coming elections.
There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights,
the freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason
is the language of Article III, Section 4, of the Constitution, which provides without qualification:
No law shall be passed abridging the freedom of speech, of expression or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievances.
This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated
by law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better
policy is to assume that every right, including even the freedom of expression, must be exercised in accordance with
law and with due regard for the rights of others.
In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully
questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that
wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting
them to certain places and hours and under specified conditions, in the interest of peace and security, public
convenience, and in one case, even to prevent disturbance of the rites in a nearby church. 2Under the Public Assembly
Act, a permit from the mayor shall be necessary for the holding of a public meeting except where the gathering is to
be held in a private place or the campus of a government-owned or controlled educational institution or a freedom
park.
All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to
restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as
established by this Court in a long line of decisions. These requisites are:
1) the interests of the public generally as distinguished from those of a particular class require the exercise of the
police power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sough to be
achieved and not unduly oppressive upon individuals. 3 In simpler terms, the police measure, to be valid, must have a
lawful objective and a lawful method of achieving it.
The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent
disparity between the rich and the poor candidates by denying both of them access to the mass media and thus
preventing the former from enjoying an undue advantage over the latter. There is no question that this is a laudable
goal. Equality among the candidates in this regard should be assiduously pursued by the government if the aspirant
with limited resources is to have any chance at all against an opulent opponent who will not hesitate to use his wealth
to make up for his lack of competence.
But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may
be employed even if it may not be the best among the suggested options. In my own view, the method here applied
falls far short of the constitutional criterion. I believe that the necessary reasonable link between the means employed
and the purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.
The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the
limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that
while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on
other campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies
and meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited
mass media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot
be matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By
the same token, the rich candidates may visit more houses, send more letters, make more telephone appeals, distribute
more campaign materials, incurring for all these more expenses than the poor candidates can afford. But these
advantages are allowed by the law because they do not involve the use of mass media space and time.
And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is
raised for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would
be prohibited under the law although the rich candidates clearly has in this case no advantage over his adversary.
And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio
commentator who is apparently expressing his own opinion without financial consideration or inducement? This is not
prohibited by Section 11(b) simply because the endorsement does not appear to have been purchased by the
candidates or given to him for free.
The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of
candidates running all over the country for the offices of President of the Philippines, Vice-President, senators,
representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and
councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the
candidates would involve administrative work of unmanageable proportions, and the possibility as well of unequal
distribution, whether deliberate or unintentional, that might create more serious problems than the problem at hand.
It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to
resolve and its resolution may not be reviewed by the courts of justice. In the case of the police power, however, it is
required that there be a plausible nexus between the method employed and the purpose sought to be achieved, and
determination of this link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as
remarked by Justice Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that
what the law has done was valid to begin with. The trouble with the challenged law is that it hasexceeded what it
should have done, thereby becoming both inefficacious and arbitrary. As such, it must be slain.
But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In
a word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should
he be so rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility
of finding a man base enough to accept the office of censor and at the same time good enough to perform its duties.
Yet a pretender to that meddler is in our midst today, smugly brandishing the threat of this miserable law.
One could perhaps concede some permissible instances of censorship, as where private mail is screened during
wartime to prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the
national security or where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded
theater. But these exceptions merely make and bolster the rule that there should be no prior restraint upon a person's
right to express his ideas on any subject of public interest. The rule applies whether the censorship be in the form of
outright prohibition, as in the cases before us, or in more subtle forms like the imposition of tax upon periodicals
exceeding a prescribed maximum number of copies per issue 4 or allowing the circulation of books only if they are
judged to be fit for minors, thus reducing the reading tastes of adults to the level of juvenile morality. 5
I remind the Court of the doctrine announced in Bantam Books v.
Sullivan 6 that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against
its validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision
appears quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to
justify it in the name of social justice and clean elections cannot prevail over the self-evident fact that what we have
here is an illegal intent to suppress free speech by denying access to the mass media as the most convenient
instruments for the molding of public opinion. And it does not matter that the use of these facilities may involve
financial transactions, for the element of the commercial does not remove them from the protection of the
Constitution. 7
The law is no less oppressive on the candidates themselves who want and have the right to address the greatest
number of voters through the modern facilities of the press, radio and television. Equally injured are the ordinary
citizens, who are also entitled to be informed, through these mass media, of the qualifications and platforms of the
various candidates aspiring for public office, that they may be guided in the choice they must make when they cast
they ballots. 8
I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on the choice of our elective officials. It is truly alarming
that elections in a growing number of cases have become no more than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce.
The offer of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the elemental struggle for survival. That there are
millions of such persons can only compound this terrible situation. But what makes it especially revolting is the way these helpless persons are manipulated and imposed upon
and tantalized to surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy themselves into elective office —
these are the real saboteurs of democracy. These are the scoundrels who would stain the pristine ballot in their cynical scheme to usurp public office by falsifying the will of the
people. Section 11(b) aims to minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on
Elections relies heavily on Badoy v. Commission on Elections 9 to sustain the exercise of its authority to regulate and
supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the
present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No.
6132 providing as follows:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the areas in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all
the names of all other candidates in the district in which the candidate is running are also mentioned
with equal prominence.
The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo),
declared:
Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of
R.A. No. 6132 designed to maximize, if not approximate, equality of chances among the various
candidates in the same district, the said restriction on the freedom of expression appears too
insignificant to create any appreciable dent on the individual's liberty of expression.
What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the
candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What
Section 11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that
finds no justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass
media as a vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to
create any appreciable dent on the individual's liberty of expression."
What is in point is Sanidad v. Commission on Elections, 10 where this Court, through Mr. Justice Medialdea,
unanimously declared unconstitutional a regulation of the Commission on Elections providing as follows:
Sec. 19. Prohibition on columnists, commentators or announcer. — During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer
or personality shall use his column or radio or television time to campaign for or against the
plebiscite issues.
On the argument that the said persons could still express their views through the air time and newspaper space to be
allocated by the respondent, the Court declared:
Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not
absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against
the organic act because he may do so through the Comelec space and/or Comelec radio/television
time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of
expression, it is still restriction on his choice of the forum where he may express his view. No reason
was advanced by respondent to justify such abridgment. We hold that this form of regulation is
tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. (Emphasis
supplied)
This decision was promulgated without a single dissent, even from the incumbent members then who are now
sustaining Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in
this decision upholding the prohibition in question.
The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight
of the poor candidate thus:
Respondent Commission invites appreciation of the realities of present-day political campaigns. In
today's election competitions the success of one's candidacy rests to a great extent on the candidate's
ability to match the financial and material resources of the other. Where a candidate is given limitless
opportunity to take his campaign to areas of persuasion through the media, what is left of a winning
chance for a poor, if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act
No. 6646, a wealthy candidate could block off an opponent of lesser means from the public view by
buying all print space in newspapers and air time in radio and television.
I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the
poor candidates vis-a-vis a wealthy opponent determined to win at all cost (which he can afford). However, for all its
anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the
Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.
The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or
could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not
be carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the
Constitution to supervise or regulate the operations of the mass media in connection with election matters, and we
may expect that it will use this power to prevent the monopoly it fears, which conceivably will consume all the funds
the candidate is allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as
long as he does not exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere
fact that the poor candidate can spend only a small fraction of that amount does not prevent the rich candidate from
spending all of it if he is so minded. This may be a heartless way of putting it, but that is in fact how the law should be
interpreted. The Election Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the
rich candidate shall spend only the same amount as the poor candidates can afford.
I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be
exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our
intelligence and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the
free society. As part of the larger picture, these impositions are only minor irritations that, placed in proper
perspective, should not justify the withdrawal of the great an inalienable liberty that is the bedrock of this Republic. It
is best to remember in this regard that freedom of expression exists not only for the though that agrees with us, to
paraphrase Justice Holmes, but a also for the thought that we abhor.
I submit that all the channels of communication should be kept open to insure the widest dissemination of information
bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the
officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is
important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for
public office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible
aberration of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume
of victory.
For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the
challenged law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the
Constitution that will ruthlessly bleed it white, and with it this most cherished of our freedoms.
PARAS, J., dissenting:
In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like efficiency,
rendered a decision which in the interest of accuracy and candidness, I would like to turn — the serious attack on our
freedom of expression. It is sad but I have no choice except to say that I dissent.
The freedom to advertise one's political candidacy in the various forms of media is clearly a significant part of our
freedom of expression and of our right of access to information. Freedom of expression in turn in includes among
other things, freedom of speech and freedom of the press. Restrict these freedoms without rhyme or reason, and you
violate the most valuable feature of the democratic way of life.
The majority says that the purpose of the political advertisement provision is to prevent those who have much money
from completely overwhelming those who have little. This is gross errors because should the campaign for votes be
carried out in other fora (for example, rallies and meetings) the rich candidate can always be at a great advantage over
his less fortunate opponent. And so the disparity feared will likewise appear in campaigns other than through media. It
is alleged also that the candidate with money can purchase for himself several full page advertisements, making his
poor opponents really poor in more ways than one. This is not realistic for the poor opponents may, for certain reasons
be given or favored with advertisements free of charge, and money will not be needed in this case. And yet under the
statute in question, even free or gratuitous advertisements in print, in radio or in television are included in the
prohibition. And then again, it is contended by the majority that a poor candidate can still make use of media by
consenting to interviews and news reports about this campaign, which interviews and reports are, according to the
majority still allowable. But then these interviews and news reports are still subtle advertisements and they can be had
if a candidate deliberately looks for media practitioners to inner view him or to write about him. If the majority is to
be consistent, these interviews and news reports should also be disallowed. A case in point is the senatorial candidate
who was interviewed on television last Tuesday (March 3, 1992). Portions of the interview follow:
Q In 19___, were you not the Secretary of _____________?
A Yes, I was.
Q When you were Secretary, did you not accomplish the following?
A (Interviewer then enumerated various accomplishments.)
Q Yes, I did.
There can be no doubt that this interview is disguised propaganda, and yet, if we follow the majority opinion, this is
allowable. Is this not
illogical — that is , if the ban stays?
And then again, if we were to consider the ban as constitutional, the "unknown" or "lesser known" candidates would
be at a distinct disadvantage. They will have to hold numerous rallies (spending oodles and oodles of money). And
only those who had previously received public exposure by dint of government service or by prominence in the
movies, in music, in sports, etc. will be the ones "recalled" by the voters. This will indeed be unfortunate for our
country.
It is true that freedom of speech and freedom of the press are not absolute, and that they have their own limitations.
But I do not see how these limitations can make the disputed prohibition valid and constitutional.
I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and eminently
unconstitutional.

Separate Opinions
DAVIDE, JR., J., concurring:
I fully concur with the majority opinion. I wish, however, to express my thoughts on some material points.
The constitutional issue raised in these cases must be decided in the light of the provisions of our own Constitution
and not on orthodox principles or classical definitions of certain rights which have, in the course of time and as a
result of the interplay of societal forces requiring the balancing of interests and values, been unchained from their
absolutist moorings.
It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is
not an absolute right.
Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the right or privilege
of free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its
limitations; the right is not absolute at all times and under all circumstances, although limitations are recognized only
in exceptional cases. Freedom of speech does not comprehend the right to speak whenever, however, and wherever
one pleases, and the manner, and place, or time of public discussion can be constitutionally controlled."1
The foregoing rule proceeds from the principle that every right or freedom carries with it the correlative duty to
exercise it responsibly and with due regard for the right and freedoms of others. In short, freedom is not freedom from
responsibility, but with responsibility.
I respectfully submit that there can be no higher form of limitation to a right than what the Constitution itself
authorizes. On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of speech or expression
and of the press vis-a-vis the electoral process, the present Constitution lays downs certain principles authorizing
allowable restraints thereon. I refer to the. following provisions of the 1987 Constitution, to wit:
(1) Section 26 of Article II. (Declaration of Principle and other Policies) which reads:
The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (emphasis supplied)
(2) Sec 1 of Article XIII (Social Justice and Human rights) which reads:
The congress shall give highiest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic,
andpolitical inequalities, and remove cultural inequities by equitably
diffusing wealth andpolitical power for the common good. (emphasis supplied)
(3) Section 4 of Article IX-C which provides:
The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the government or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary.Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest,
peaceful, and credible elections. (emphasis supplied)
There can be no doubt that the first two (2) provisions contemplate measures that would bridge the gap between the
rich and the poor in our society. In the past, the equilibrium sought to be achieved was only in the economic and social
fields. Thus, before the advent of the 1987 Constitution, social justice was defined as:
Social Justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so that justice
in its rational and objectively secular conception may at least be approximated. Social justice means
the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the existence of all governments on the
time-honored principle ofsalus populi est suprema lex.
Social justice, therefore, must be founded on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the protection that should be equally and evenly
extended to all groups as a combined force in our social and economic life, consistent with the
fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest good to the greatest number." 2
Aware of the lamentable fact that in the Philippines, no gap between these two unavoidable extremes of society is
more pronounced than in the field of politics, and ever mindful of the dire consequences thereof, the framers of the
present Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the
elite, the rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an
exception. Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and
competent, does not stand a fighting
chance. Of course, there have been isolated instances — but yet so few and far between — when poor candidates
made it.
Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focusing strictly on the
legitimate aspect of the electoral struggle, propaganda, through the various forms of media, provides the most
sophisticated and effective means of reaching the electorate and convincing voters to vote for a particular candidate. It
is in this area, particularly in the use of television, radio and newspaper, that a poor candidate will not be able to
compete with his opulent opponents who have all the resources to buy prime television and radio time and full pages
of leading newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely relax in
their homes, offices or hotel suites, can reach every nook and cranny of their municipality, city, province, district or
even the entire Philippines and be seen or heard at any time of the day and night. During the contracted hours, their
paid hacks can concentrate on dishonoring the poor and hapless opponent by hurling innuendoes of defects or vice.
With newspaper advertisements, the wealthy candidates can reach thousands of readers daily. A worse scenario
obtains where the rich candidates themselves fully or substantially own or operate a television or radio station, or
publish newspapers. On the other hand, to a poor candidate, the campaign period would sadly prove to be insufficient
for him to campaign in every barangay, even if he is running for a municipal position. Thus, not only would he already
be at a disadvantage insofar as visibility and presentation of his issues or program of government are concerned, he
would have no opportunity to rebut whatever lies his opponents may spread nor the chance to clear himself of false
accusations.
Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress passed a measure,
R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, 3 introducing additional reforms to the
electoral system which, inter alia, not only seeks to enhance the purity of the electoral process, but also aspires to
ensure even just an approximation of equality among all candidates in their use of media for propaganda purposes.
The latter is best evidenced by the provision challenged in this case, Section 11 (b), which reads:
Section 11. Prohibited forms of election propaganda. — In addition to the forms of propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
 Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign period.
This provision, understood in the light of Section 4, Article IX-C of the Constitution, is a reasonable regulation
enacted to accomplish the desired objectives and purposes earlier mentioned. It neither constitutes proscribed
abridgment of the freedom of expression nor prohibits free speech; it merely provides the rules as to the manner, time
and place for its exercise during a very limited period. It makes reference to Sections 90 and 92 of Batas Pambansa
Blg. 881 on "COMELEC time" and "COMELEC space." Said sections read in full as follows:
Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission among all candidates within the
area in which the newspaper is circulated. (Sec. 45, 1978 EC)
xxx xxx xxx
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the
area of coverage of all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide radio or television time, free
of charge, during the period of the campaign. (Sec. 46, 1978 EC)
Obviously then, the airing and printing of a candidate's political advertisements can be done — and is even
encouraged to be done — during the "COMELEC time" and within the "COMELEC space." This authority of the
COMELEC is no longer purely statutory. It is now constitutional pursuant to the clear mandate of Section 4 of Article
IX-C, which is quoted above. This constitutional grant removes whatever doubt one may have on the split verdict of
this Court in Badoy vs. Ferrer, et al., 4 Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the area in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all
the names of all other candidates in the district in which the candidate is running are also mentioned
with equal prominence.
this Court ruled:
Against the background of such facilities accorded by the law for all candidates, rich and poor alike,
and the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration
and the equality or chances among the candidates, the restriction on the freedom of expression of the
candidate or any other individual prescribed in par. F of Sec. 12 is so narrow as not to affect the
substance and vitality of his freedom of expression itself.
xxx xxx xxx
Hence, consistent with out opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs.
Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F Sec. 12, it only one of the many devices employed by the law
to prevent a clear and present danger of the perversion or prostitution of the electoral apparatus and
of the denial of the equal protection of the laws.
The fears and apprehensions of petitioner concerning his liberty of expression in these two cases,
applying the less stringent balancing -of-interests criterion, are far outweighed by the all important
substantive interests of the State to preserve the purity of the ballot and to render more meaningful
and real the guarantee of the equal protection of the laws.
In the fairly recent case of Sanidad vs. Commission on Elections, 5 this Court sustained, in effect, the validity of
Section 11(b) of R.A. No. 6646. Thus:
However, it is clear from Act. IX-C of the 1987 Constitution that what was granted to the Comelec
was the power to supervise and regulate the use and enjoyment of franchises, permits or other
grantsissued for the operation of transportation or other public utilities, media of communication or
information to the end that equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates are
ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder
may favor or give any undue advantage to a candidate in terms of advertising space or radio or
television time. This is also the reason why a columnist, commentator, announcer or personality, who
is a candidate for any elective office is required to take a leave of absence from his work during the
campaign period (2nd par. Section 11 (b) R.A. 6646). It cannot be gainsaid that a columnist or
commentator who is also a candidate would be more exposed to the voters to the prejudice of other
candidates unless required to take a leave of absence.
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during plebiscite periods.
Media practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite.
Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition
is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the
electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented
in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes
are taken in an area on some special political matter unlike in an election where votes are cast in
favor of specific persons for some office. In other words, the electorate is asked to vote for or against
issues, not candidates in a plebiscite.
Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged provision, the
doubt must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs. Executive Secretary,
et al.: 6
. . . it is in accordance with the settled doctrine that between two possible constructions, one avoiding
a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That
which will save, not that which will destroy, commends itself for acceptance. After all, the basic
presumption all these years is one of validity. The onerous task of proving otherwise is on the party
seeking to nullify a statute. It must be proved by clear and convincing evidence that there is an
infringement of a constitutional provision, save in those cases where the challenged act is void on its
face. Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-
founded, does not suffice. Justice Malcolm's aphorism is apropos: "To doubt is to sustain." 7
The reason for this is that an act of the legislature approved by the executive is presumed to be within constitutional
bounds. The responsibility of upholding the Constitution rests not only on the courts, but also on the legislature and
the executive as well.
For the Court to strike our their acts as unconstitutional, nothing less than clear and convincing evidence of such
breach of the Constitution must be shown.
Petitioners have not acquitted themselves of that duty. The petitions then must be dismissed for lack of merit.

PADILLA, J.: concurring:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.
Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987," challenged in these
petitions, states that:
 Sec. 11. Prohibited Forms of Election Propaganda — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign period.
Petitioners contend that the provision is void because it is violative of the freedoms of the press, speech and
expression as guaranteed by Article III, Section 4 of the Constitution.
But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate exercise of its
police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property,
(2) in order to foster the common good.
xxx xxx xxx
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable and individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare." Significantly, the Bill of rights itself does not
purport to be an absolute guaranty of individual rights and liberties. "Even liberty itself, the greatest
of all rights, is not unrestricted license to act according to one's will." It is subject to the far more
overriding demands and requirements of the greater number. 1
Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this
reason, it is co-extensive with the necessities of the case and the safeguards of public interest. 2
In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal access to
opportunities for public service. 3 Opportunity to hold a public office for public service, particularly elective public
offices must be equally accessible to qualified and deserving citizens. Corollary to this, the legislature also recognizes
the power of the Commission on Elections (COMELEC) to supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of media of communication or information granted by the government or any
subdivision, agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefore, for public information campaigns
and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible
elections." 4
In Pablito V. Sanidad vs. The Commission on Elections, 5 we held that the evil sought to be prevented by Art. IX-C,
Section 4 of the Constitution is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time.
In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act
as an equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a
myriad of campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign
would result in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print
space and air time, and yet, they may be equally qualified and deserving candidates. In Anacleto D. Badoy, Jr. vs.
Jaime N. Ferrer, et al., G.R. NO.
L-32546, October 17, 1970, 35 SCRA 285, this Court declared Section 12(F) of R.A. No. 6132 valid and
constitutional, recognizing that the purpose of the limitation, on the freedom of the candidate or his sympathizer to
spend his own money for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give
the poor candidates a fighting chance in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize,
if not approximate, equality of chances among the various candidates for elective public office.
Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space or air time for
campaign or other political purposes, access to print space and air time would be given equally to all candidates.
Nevertheless, as opined by the COMELEC, the means to gain access to said time and space would be unequal among
all candidates. Hence, there would be in the final analysis, inequality.
Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign purposes will open the
floodgates to corruption in public office because a winning candidate who overspends during the election period must
necessarily recover his campaign expenses by "hook or crook". Section 11 of R.A. No. 6646 would indirectly
constitute a positive and effective measure against corruption in public office.
Petitioners also contend that the challenged provision is "violative of the people's right to information particularly
about the conduct of public officials including the character and qualifications of candidates seeking public office."
I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision in expressing
its mandate — no sufficient fora to detect and decide for themselves who, among the candidates truly deserve their
votes. 6
Aside from Sec. 11 (b) of R.A. No. 6646 providing for Comelec space and Comelec time, Sections 9 and 10 of the
same law afford a candidate several venues by which the can fully exercise his freedom of expression, including
freedom of assembly. The electorate, in turn, are given opportunities to know the candidates and be informed of their
qualifications and platforms.
As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan private or
civic organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for
the same office may simultaneously and personally participate to present, explain, and/or debate on their campaign
platforms and programs and other like issues. Section 10, on the other hand, allows the candidates the use of the
designated common poster areas to post, display and exhibit election propaganda to announce or further their
candidacy; not to mentioned the right to hold political caucuses. conferences, meetings, rallies, parades, or other
assemblies for the purpose of soliciting votes and/or undertaking any campaign or propaganda for a candidate;
publishing or distributing campaign literature or materials designed to support the election of any candidate; and
directly or indirectly solicit votes, pledges or support for a candidate. 7
In short, the law in question (Sec. 11, Rep. Act No. 6646) has been enacted for a legitimate public purpose and the
means it employs to achieve such purpose are reasonable and even timely.
Based on all the foregoing consideration, I vote to sustain the validity and constitutionality of Section II of R.A. No.
6646.
GUTIERREZ, JR., J., dissenting:
I am saddened by the readiness with which Congress, Comelec, and the members of this Court are willing to sacrifice
not only that most precious clause of the Bill of Rights — freedom of speech and of the press — but also the right of
every citizen to be informed in every way possible about the qualifications and programs of those running for public
office.
Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the voters ignorant of who the candidates are
and what they stand for.
With elections fast approaching, the surveys show that almost half of the nation's voters are undecided as to the
Presidency. Certainly, they do not know who are running for the Senate.
The implementation of Section 11 (b) will result in gross inequality. A cabinet member, an incumbent official, a movie
star, a basketball player, or a conspicuous clown enjoys an unfair advantage over a candidate many times better
qualified but lesser known.
I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio, former NBI
Director; Estelito P. Mendoza, former Solicitor General and Governor; and Florangel Rosario Braid, member of the
Constitutional Commission and distinguished mass communication personality (to name only three) are also running
for the Senate. We owe it to the masses to open all forms of communication to them during this limited campaign
period. A candidate to whom columnists and radio-television commentators owe past favors or who share their
personal biases and convictions will get an undue amount of publicity. Those who incur the ire of opinion makers
cannot counteract negative reporting by buying his own newspaper space or airtime for the airing of his refutations.
Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to the task keeping
registration lists clean and had to repeat the exercise in critical areas. It should now husband its resources for its real
function — insuring the integrity of the voting process and safeguarding the true results of the elections.
Why Comelec should also supervise the publicity campaigns of almost 100,00 candidates running for 17,000 national
and local positions is beyond my poor power to comprehend.
I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the fresh,
imaginative, and personal appeal of advertisements espousing a cause or reaching a particular audience.
Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed
during the limited period of the election campaign when information is most needed. Moreover, the mere thought that
published materials are supervised by a government office is enough to turn the reader off. Only faithful followers
who already know for whom they are voting will bother to read the statements of their chosen candidate in the
Comelec corner of the newspapers.
The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited period. The
amount which a political party or candidate may spend is restricted. Added to the confines of the limited
period andrestricted expenses, the law now imposes a violation of the candidates' freedom of speech and the voters'
freedom to know.
I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant style. We should
not allow the basic freedom of expression to be sacrificed at the alter of infinitely lesser fears and concerns. Under the
clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to
be avoided must be so substantive as to justify a clamp over one's mouth or, a writing instrument to be stilled.
In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one short of the 2/3
majority needed to invalidate the law) deemed a less restrictive statute as unconstitutional. The four (4) Justices who
allowed the law to remain did so only because there were various safeguards and provisos. Section 11(b) of R.A. No.
6646 now removes one of those safeguards.
The then Justice Fred Ruiz Castro stated:
What of the social value and importance of the freedoms impaired by Section 50-B? The legislation
strikes at the most basic political right of the citizens in a republican system, which is the right
actively to participate in the establishment or administration of government. This right finds
expression in multiple forms but it certainly embraces that right to influence the shape of policy and
law directly by the use of ballot. It has been said so many times it scarcely needs to be said again, that
the realization of the democratic ideal of self-government depends upon an informed and committed
electorate. This can be accomplished only by allowing the fullest measure of freedom in the public
discussion of candidates
and the issues behind which they rally; to this end, all avenues of persuasion — speech, press,
assembly, organization — must be kept always open. It is in the context of the electoral process that
these fundamental rights secured by the Constitution assume the highest social importance. (at page
904; Emphasis supplied)
I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the choice of the nation's
leaders. I vote to declare the challenged legislation unconstitutional.
CRUZ, J., dissenting:
It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is
nothing more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty
in another obeisance to the police state, which we so despised during the days of martial law. I cannot share in the
excuses of the Court because I firmly believe that the highest function of authority is to insure liberty.
In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. May
quarrel is with the way the objective is being pursued for I find the method a most indefensible repression. It does
little good, I should think, to invoke the regularity authority of the Commission on Elections, for that power is not a
license to violate the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject
to the requirements of the police power which the ponencia seems to disdain.
It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the
challenged at is presumed to be valid in deference to the political departments. But not — and this represents a
singular exception — where the act is claimed to violate individual liberty, most importantly the freedom of
expression. In such a vital and exceptional case, as in the case now before us, I respectfully submit that the
presumption must be reversed in favor of the challenge.
Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above
all liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the
communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights
include the equally important freedom of the press, the right of assembly and petition, the right to information on
matters of public concern, the freedom of religion insofar as it affects the right to form associations as an instrument
for the ventilation of views bearing on the public welfare.
Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the
quaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the
hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most
cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that
is first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of
the press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972.
The reason for this precaution is that freedom
of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be
wielded by every citizen in the
land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart
to use it.
As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and
suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a
duty. From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full
deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to
be the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options,
let alone the latitude with which they are considered, can insure a far better choice than that made by the heedless
dictator in the narrow confines of his mind and the loneliness of his pinnacle of power.
The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are
communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression
protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify
meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of
belligerence. The individual can convey his message in a poem or a novel or a tract or in a public speech or through a
moving picture or a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be
heeded, for a acceptability will depend on the quilty of his thoughts and of his persona, as well as the mood and
motivation of his audience. But whatever form he employs, he is entitled to the protection of the Constitution against
any attempt to muzzle his thoughts.
There is one especially significant way by which the citizen can express his views, and that is through the ballot. By
the votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the
various elective offices in the government, from the highest position of President of the Philippines to that of the
lowly member of the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his
intelligence (or lack of it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any
other candidate with no known distinction except the presumptuousness to seek elective office. Fortunately, there are
also other candidates deserving of the support of the circumspect and thinking citizens who will use their suffrages
conscientiously with only the public interest as their criterion and guide.
It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they
are allowed to campaign during the election period. Such campaign includes their personally visiting the voters in
house-to-house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-
serving leaflets extolling their virtues, giving away buttons and stickers and sample ballots and other compaign
materials, and holding caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to
do in the specified places and at the proper time provided only that they do not exceed the maximum limit of election
expenses prescribed by the Election Code at the rate of P1.50 for every voter currently registered in the constituency
where they filed their certificate of candidacy. 1
It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the
prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or
placards or posters or meetings to reach the electorate, incurring for this purposes a not inconsiderable amount of his
or his supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of
mass communications, even for free. Employment of these facilities is allowed only through the respondent
Commission on Elections, which is directed by the Election Code to procure newspaper space and radio and television
time to be distributed among the thousands of candidates vying throughout the land for the thousands of public offices
to be filled in the coming elections.
There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights,
the freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason
is the language of Article III, Section 4, of the Constitution, which provides without qualification:
No law shall be passed abridging the freedom of speech, of expression or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievances.
This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated
by law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better
policy is to assume that every right, including even the freedom of expression, must be exercised in accordance with
law and with due regard for the rights of others.
In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully
questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that
wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting
them to certain places and hours and under specified conditions, in the interest of peace and security, public
convenience, and in one case, even to prevent disturbance of the rites in a nearby church. 2Under the Public Assembly
Act, a permit from the mayor shall be necessary for the holding of a public meeting except where the gathering is to
be held in a private place or the campus of a government-owned or controlled educational institution or a freedom
park.
All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to
restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as
established by this Court in a long line of decisions. These requisites are:
1) the interests of the public generally as distinguished from those of a particular class require the exercise of the
police power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sough to be
achieved and not unduly oppressive upon individuals. 3 In simpler terms, the police measure, to be valid, must have a
lawful objective and a lawful method of achieving it.
The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent
disparity between the rich and the poor candidates by denying both of them access to the mass media and thus
preventing the former from enjoying an undue advantage over the latter. There is no question that this is a laudable
goal. Equality among the candidates in this regard should be assiduously pursued by the government if the aspirant
with limited resources is to have any chance at all against an opulent opponent who will not hesitate to use his wealth
to make up for his lack of competence.
But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may
be employed even if it may not be the best among the suggested options. In my own view, the method here applied
falls far short of the constitutional criterion. I believe that the necessary reasonable link between the means employed
and the purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.
The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the
limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that
while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on
other campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies
and meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited
mass media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot
be matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By
the same token, the rich candidates may visit more houses, send more letters, make more telephone appeals, distribute
more campaign materials, incurring for all these more expenses than the poor candidates can afford. But these
advantages are allowed by the law because they do not involve the use of mass media space and time.
And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is
raised for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would
be prohibited under the law although the rich candidates clearly has in this case no advantage over his adversary.
And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio
commentator who is apparently expressing his own opinion without financial consideration or inducement? This is not
prohibited by Section 11(b) simply because the endorsement does not appear to have been purchased by the
candidates or given to him for free.
The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of
candidates running all over the country for the offices of President of the Philippines, Vice-President, senators,
representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and
councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the
candidates would involve administrative work of unmanageable proportions, and the possibility as well of unequal
distribution, whether deliberate or unintentional, that might create more serious problems than the problem at hand.
It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to
resolve and its resolution may not be reviewed by the courts of justice. In the case of the police power, however, it is
required that there be a plausible nexus between the method employed and the purpose sought to be achieved, and
determination of this link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as
remarked by Justice Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that
what the law has done was valid to begin with. The trouble with the challenged law is that it hasexceeded what it
should have done, thereby becoming both inefficacious and arbitrary. As such, it must be slain.
But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In
a word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may
speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should
he be so rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility
of finding a man base enough to accept the office of censor and at the same time good enough to perform its duties.
Yet a pretender to that meddler is in our midst today, smugly brandishing the threat of this miserable law.
One could perhaps concede some permissible instances of censorship, as where private mail is screened during
wartime to prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the
national security or where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded
theater. But these exceptions merely make and bolster the rule that there should be no prior restraint upon a person's
right to express his ideas on any subject of public interest. The rule applies whether the censorship be in the form of
outright prohibition, as in the cases before us, or in more subtle forms like the imposition of tax upon periodicals
exceeding a prescribed maximum number of copies per issue 4 or allowing the circulation of books only if they are
judged to be fit for minors, thus reducing the reading tastes of adults to the level of juvenile morality. 5
I remind the Court of the doctrine announced in Bantam Books v.
Sullivan 6 that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against
its validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision
appears quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to
justify it in the name of social justice and clean elections cannot prevail over the self-evident fact that what we have
here is an illegal intent to suppress free speech by denying access to the mass media as the most convenient
instruments for the molding of public opinion. And it does not matter that the use of these facilities may involve
financial transactions, for the element of the commercial does not remove them from the protection of the
Constitution. 7
The law is no less oppressive on the candidates themselves who want and have the right to address the greatest
number of voters through the modern facilities of the press, radio and television. Equally injured are the ordinary
citizens, who are also entitled to be informed, through these mass media, of the qualifications and platforms of the
various candidates aspiring for public office, that they may be guided in the choice they must make when they cast
they ballots. 8
I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on the choice of our elective officials. It is truly alarming
that elections in a growing number of cases have become no more than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce.
The offer of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the elemental struggle for survival. That there are
millions of such persons can only compound this terrible situation. But what makes it especially revolting is the way these helpless persons are manipulated and imposed upon
and tantalized to surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy themselves into elective office —
these are the real saboteurs of democracy. These are the scoundrels who would stain the pristine ballot in their cynical scheme to usurp public office by falsifying the will of the
people. Section 11(b) aims to minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on
Elections relies heavily on Badoy v. Commission on Elections 9 to sustain the exercise of its authority to regulate and
supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the
present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No.
6132 providing as follows:
The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and
impartially among all candidates within the areas in which the newspapers are circulated. Outside of
said Comelec space, it shall be unlawful to print or publish, or cause to be printed or published, any
advertisement, paid comment or paid article in furtherance of or in opposition to the candidacy of any
person for delegate, or mentioning the name of any candidate and the fact of his candidacy, unless all
the names of all other candidates in the district in which the candidate is running are also mentioned
with equal prominence.
The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo),
declared:
Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of
R.A. No. 6132 designed to maximize, if not approximate, equality of chances among the various
candidates in the same district, the said restriction on the freedom of expression appears too
insignificant to create any appreciable dent on the individual's liberty of expression.
What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the
candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What
Section 11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that
finds no justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass
media as a vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to
create any appreciable dent on the individual's liberty of expression."
What is in point is Sanidad v. Commission on Elections, 10 where this Court, through Mr. Justice Medialdea,
unanimously declared unconstitutional a regulation of the Commission on Elections providing as follows:
Sec. 19. Prohibition on columnists, commentators or announcer. — During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer
or personality shall use his column or radio or television time to campaign for or against the
plebiscite issues.
On the argument that the said persons could still express their views through the air time and newspaper space to be
allocated by the respondent, the Court declared:
Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not
absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against
the organic act because he may do so through the Comelec space and/or Comelec radio/television
time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of
expression, it is still restriction on his choice of the forum where he may express his view. No reason
was advanced by respondent to justify such abridgment. We hold that this form of regulation is
tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. (Emphasis
supplied)
This decision was promulgated without a single dissent, even from the incumbent members then who are now
sustaining Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in
this decision upholding the prohibition in question.
The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight
of the poor candidate thus:
Respondent Commission invites appreciation of the realities of present-day political campaigns. In
today's election competitions the success of one's candidacy rests to a great extent on the candidate's
ability to match the financial and material resources of the other. Where a candidate is given limitless
opportunity to take his campaign to areas of persuasion through the media, what is left of a winning
chance for a poor, if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act
No. 6646, a wealthy candidate could block off an opponent of lesser means from the public view by
buying all print space in newspapers and air time in radio and television.
I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the
poor candidates vis-a-vis a wealthy opponent determined to win at all cost (which he can afford). However, for all its
anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the
Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.
The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or
could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not
be carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the
Constitution to supervise or regulate the operations of the mass media in connection with election matters, and we
may expect that it will use this power to prevent the monopoly it fears, which conceivably will consume all the funds
the candidate is allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as
long as he does not exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere
fact that the poor candidate can spend only a small fraction of that amount does not prevent the rich candidate from
spending all of it if he is so minded. This may be a heartless way of putting it, but that is in fact how the law should be
interpreted. The Election Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the
rich candidate shall spend only the same amount as the poor candidates can afford.
I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be
exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our
intelligence and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the
free society. As part of the larger picture, these impositions are only minor irritations that, placed in proper
perspective, should not justify the withdrawal of the great an inalienable liberty that is the bedrock of this Republic. It
is best to remember in this regard that freedom of expression exists not only for the though that agrees with us, to
paraphrase Justice Holmes, but a also for the thought that we abhor.
I submit that all the channels of communication should be kept open to insure the widest dissemination of information
bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the
officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is
important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for
public office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible
aberration of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume
of victory.
For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the
challenged law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the
Constitution that will ruthlessly bleed it white, and with it this most cherished of our freedoms.
PARAS, J., dissenting:
In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like efficiency,
rendered a decision which in the interest of accuracy and candidness, I would like to turn — the serious attack on our
freedom of expression. It is sad but I have no choice except to say that I dissent.
The freedom to advertise one's political candidacy in the various forms of media is clearly a significant part of our
freedom of expression and of our right of access to information. Freedom of expression in turn in includes among
other things, freedom of speech and freedom of the press. Restrict these freedoms without rhyme or reason, and you
violate the most valuable feature of the democratic way of life.
The majority says that the purpose of the political advertisement provision is to prevent those who have much money
from completely overwhelming those who have little. This is gross errors because should the campaign for votes be
carried out in other fora (for example, rallies and meetings) the rich candidate can always be at a great advantage over
his less fortunate opponent. And so the disparity feared will likewise appear in campaigns other than through media. It
is alleged also that the candidate with money can purchase for himself several full page advertisements, making his
poor opponents really poor in more ways than one. This is not realistic for the poor opponents may, for certain reasons
be given or favored with advertisements free of charge, and money will not be needed in this case. And yet under the
statute in question, even free or gratuitous advertisements in print, in radio or in television are included in the
prohibition. And then again, it is contended by the majority that a poor candidate can still make use of media by
consenting to interviews and news reports about this campaign, which interviews and reports are, according to the
majority still allowable. But then these interviews and news reports are still subtle advertisements and they can be had
if a candidate deliberately looks for media practitioners to inner view him or to write about him. If the majority is to
be consistent, these interviews and news reports should also be disallowed. A case in point is the senatorial candidate
who was interviewed on television last Tuesday (March 3, 1992). Portions of the interview follow:
Q In 19___, were you not the Secretary of _____________?
A Yes, I was.
Q When you were Secretary, did you not accomplish the following?
A (Interviewer then enumerated various accomplishments.)
Q Yes, I did.
There can be no doubt that this interview is disguised propaganda, and yet, if we follow the majority opinion, this is
allowable. Is this not
illogical — that is , if the ban stays?
And then again, if we were to consider the ban as constitutional, the "unknown" or "lesser known" candidates would
be at a distinct disadvantage. They will have to hold numerous rallies (spending oodles and oodles of money). And
only those who had previously received public exposure by dint of government service or by prominence in the
movies, in music, in sports, etc. will be the ones "recalled" by the voters. This will indeed be unfortunate for our
country.
It is true that freedom of speech and freedom of the press are not absolute, and that they have their own limitations.
But I do not see how these limitations can make the disputed prohibition valid and constitutional.
I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and eminently
unconstitutional.

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the
posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the
authorized posting areas that it fixes.
On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the
Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.
Section 15(a) of the resolution provides:
Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:
(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or
printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in
 length. Provided, That decals and stickers may be posted only in any of the authorized posting
areasprovided in paragraph (f) of Section 21 hereof.
Section 21 (f) of the same resolution provides:
Sec. 21(f). Prohibited forms of election propaganda. —
It is unlawful:
xxx xxx xxx
(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place,
whether public or private, mobile or stationary, except in the COMELEC common posted areas
and/or billboards, at the campaign headquarters 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:Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3)
feet in size. (Emphasis supplied)
xxx xxx xxx
The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful
election propaganda which provides:
Lawful election propaganda. — Lawful election propaganda shall include:
(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more
than eight and one-half inches in width and fourteen inches in length;
(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;
(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet
by three feet, except 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 exceeding three feet by eight feet in size, shall be
allowed: Provided, That said streamers may not be displayed except one week before the date of the
meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; 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 equal opportunity to be heard: Provided, That the Commission's authorization shall be
published in two newspapers of general circulation throughout the nation for at least twice within one
week after the authorization has been granted. (Section 37, 1978 EC)
and Section 11(a) of Republic Act No. 6646 which provides:
Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether
private, or public, except in the common poster areas and/or billboards provided in the immediately
preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate
or political party: Provided, That such posters or election propaganda shall in no case exceed two (2)
feet by three (3) feet in area: Provided, Further, That at the site of and on the occasion of a public
meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet
each may be displayed five (5) days before the date of the meeting or rally, and shall be removed
within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)
Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's
Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving
vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a)
of Republic Act No. 6646. In 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 injury with this
prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform
the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of
February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the
entire country as to the location of the supposed "Comelec Poster Areas."
The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile"
places whether public or private except in designated areas provided for by the COMELEC itself is null and void on
constitutional grounds.
First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution
(Sec. 4, Article III). There is no public interest substantial enough to warrant the kind 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 Bill of Rights provision on this basic freedom.
All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a
preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36
SCRA 228 [1970])
This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable
condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438
[1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may be
guaranteed if the freedom to speak and to convince or persuade is denied and taken away.
We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it
may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.
(New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief
Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will
deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will
truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may
be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v.
Commission on Elections, supra)
The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms
in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-
called 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 Elections to supervise the conduct of free, honest, and orderly elections.
We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory
powers vis-a-vis the conduct and manner of elections, to wit:
Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for
public information campaigns and forms among candidates in connection with the object of holding
free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)
The variety of opinions expressed by the members of this Court in the recent case of National Press Club v.
Commission on Elections (G.R. No. 102653, March 5, 1991) 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. In the National Press Club, case, the Court had occasion to
reiterate the preferred status of freedom of expression even as it validated COMELEC 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.
For persons who have to resort to judicial action to strike down requirements which they deem inequitable or
oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for
rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke 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.
When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the
part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local
officials and COMELEC, should lean in favor of freedom. For 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 speak and the right to know are unduly curtailed.
There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all
of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the
limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, 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 expression of belief in a candidate or one's opinion of his or her
qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective.
Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, inNational
Press Club, we find the regulation in the present case of a different category. The promotion of a substantial
Government interest is not clearly shown.
A government regulation is sufficiently justified if it is within the constitutional power of the
Government, if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at
377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d
772, 104 S Ct 2118 [1984])
The posting of decals and stickers in mobile places like 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 justify the
curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not
only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive
as to justify a clamp over one's mouth or a writing instrument to be stilled:
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 any attempt to restrict those liberties must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear and present danger. The rational connection
between the remedy provided and the evil to be curbed, which in other context might support
legislation against attack 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. Only the
greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas
V. Collins, 323 US 516 [1945]). (Emphasis supplied)
Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or
the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it
on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner
agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own
and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting
by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-
for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his
private property.
Second — the questioned 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 subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444
[1967]).
In a series of decisions this Court has held that, even though the governmental purpose be legitimate
and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be
viewed in the light of less drastic means for achieving the same basic purpose.
In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance
prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license,
pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims.
In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of
four different municipalities which either banned or imposed prior restraints upon the distribution of
handbills. In 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 examine the
effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S
Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the
protection of society," but pointed out that in each case "the power to regulate must be so exercised as
not, in attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304)
(Shelton v. Tucker, 364 US 479 [1960]
The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width
and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas
designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad
that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence
of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the
Bill of Rights provides that no person shall be deprived of his property without due process of law:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by
the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])
As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving
vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only
deprive the owner who consents to such posting of the decals and stickers the use of his property but more important,
in the process, it would deprive the citizen of his right to free speech and information:
Freedom 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 naked restriction of the dissemination of ideas." (Martin v. City of Struthers,
Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty"
interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable.
The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election
propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC.
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. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous
and partisan police officers, armed with a copy of the statute or regulation, may do.
The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the
privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his
concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is
unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."
Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the
electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to
Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.
Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public
service, . . . while under section 1, Article XIII 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, andpolitical
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good."
(Emphasis supplied)
It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving
vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this
kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore,
can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals
and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free
speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down
this right and enjoin it is impermissible encroachment of his liberties.
In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the
authorized areas designated by the COMELEC becomes censorship which cannot be justified 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. Whatever 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 Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of
applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain
inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the
validity of the acts of the coordinate branches in the course of adjudication is a logical. corollary of
this basic principle that the Constitution is paramount. It overrides any governmental measure that
fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v.
Commission on Elections, supra)
The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the
freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms
and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to
bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective
positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of
the candidates running for Senator. The public does not know who are aspiring to be elected to public office.
There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the
voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is
expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation includes
its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the
Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting
areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero
and Nocon, J.J., concur.
Feliciano and Bellosillo, JJ., are on leave.

Separate Opinions

CRUZ, J.: concurring:

I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National Press Club v. Commission on
Elections. The stand taken by the Court in the case at bar is a refreshing change from its usual deferential attitude
toward authoritarianism as a persistent vestige of the past regime. After the disappointing decision in the ad ban case, I
hope that the present decision will guide us to the opposite direction, toward liberty and the full recognition of
freedom of expression. This decision is a small step in rectifying the errors of the past, but it is a step just the same,
and on the right track this time.
Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of
information so vital in an election campaign. The Commission on Elections seems to be bent on muzzling the
candidates and imposing all manner of silly restraints on their efforts to reach the electorate. Reaching the electorate is
precisely the purpose of an election campaign, but the Commission on Elections obviously believes that the
candidates should be as quiet as possible.
Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for
public office, what the Commission on Elections should concentrate on is the education of the voters on the proper
exercise of their suffrages. This function is part of its constitutional duty to supervise and regulate elections and to
prevent them from deteriorating into popularity contests where the victors are chosen on the basis not of their
platforms and competence but on their ability to sing or dance, or play a musical instrument, or shoot a basketball, or
crack a toilet joke, or exhibit some such dubious talent irrelevant to their ability to discharge a public office. The
public service is threatened with mediocrity and indeed sheer ignorance if not stupidity. That is the problem the
Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall
be allowed and stickers should not be attached and speeches may be delivered.
The real threat in the present election is the influx of the unqualified professional entertainers whose only asset is the
support of their drooling fans, the demagogues who drumbeat to the clink of coins their professed present virtues and
past innocence, the opportunists for whom flexibility is a means of political survival and even of financial gain, and,
most dangerous of all, the elements of our electorate who would, with their mindless ballots, impose these office-
seekers upon the nation. These are the evils the Commission on Elections should try to correct, not the inconsequential
and inane question of where stickers should be stuck. I have nothing but praise for the zeal of the Commission on
Elections in pursuing the ideal of democratic elections, but I am afraid it is barking up the wrong tree.
Separate Opinions
CRUZ, J., concurring:
I join Mr. Justice Gutierrez and reiterate the views expressed in my dissent in National Press Club v. Commission on
Elections. The stand taken by the Court in the case at bar is a refreshing change from its usual deferential attitude
toward authoritarianism as a persistent vestige of the past regime. After the disappointing decision in the ad ban case, I
hope that the present decision will guide us to the opposite direction, toward liberty and the full recognition of
freedom of expression. This decision is a small step in rectifying the errors of the past, but it is a step just the same,
and on the right track this time.
Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of
information so vital in an election campaign. The Commission on Elections seems to be bent on muzzling the
candidates and imposing all manner of silly restraints on their efforts to reach the electorate. Reaching the electorate is
precisely the purpose of an election campaign, but the Commission on Elections obviously believes that the
candidates should be as quiet as possible.
Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for
public office, what the Commission on Elections should concentrate on is the education of the voters on the proper
exercise of their suffrages. This function is part of its constitutional duty to supervise and regulate elections and to
prevent them from deteriorating into popularity contests where the victors are chosen on the basis not of their
platforms and competence but on their ability to sing or dance, or play a musical instrument, or shoot a basketball, or
crack a toilet joke, or exhibit some such dubious talent irrelevant to their ability to discharge a public office. The
public service is threatened with mediocrity and indeed sheer ignorance if not stupidity. That is the problem the
Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall
be allowed and stickers should not be attached and speeches may be delivered.
The real threat in the present election is the influx of the unqualified professional entertainers whose only asset is the
support of their drooling fans, the demagogues who drumbeat to the clink of coins their professed present virtues and
past innocence, the opportunists for whom flexibility is a means of political survival and even of financial gain, and,
most dangerous of all, the elements of our electorate who would, with their mindless ballots, impose these office-
seekers upon the nation. These are the evils the Commission on Elections should try to correct, not the inconsequential
and inane question of where stickers should be stuck. I have nothing but praise for the zeal of the Commission on
Elections in pursuing the ideal of democratic elections, but I am afraid it is barking up the wrong tree.

G.R. No. 115455 August 25, 1994

ARTURO M. TOLENTINO, petitioner,

vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, respondents.
G.R. No. 115525 August 25, 1994
JUAN T. DAVID, petitioner,
vs.
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance;
LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS
OR REPRESENTATIVES, respondents.
G.R. No. 115543 August 25, 1994
RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,
vs.
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU
OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.
G.R. No. 115544 August 25, 1994
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; PUBLISHING CORPORATION;
PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON. TEOFISTO T.
GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his
capacity as Secretary of Finance, respondents.
G.R. No. 115754 August 25, 1994
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,
vs.
THE COMMISSIONER OF INTERNAL REVENUE, respondent.
G.R. No. 115781 August 25, 1994
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.
CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE,
CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE
CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT COALITION, INC.,
PHILIPPINE BIBLE SOCIETY, INC., and WIGBERTO TAÑADA,petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF
INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.
G.R. No. 115852 August 25, 1994
PHILIPPINE AIRLINES, INC., petitioner,
vs.
THE SECRETARY OF FINANCE, and COMMISSIONER OF INTERNAL REVENUE, respondents.
G.R. No. 115873 August 25, 1994
COOPERATIVE UNION OF THE PHILIPPINES, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON. TEOFISTO T.
GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his
capacity as Secretary of Finance, respondents.
G.R. No. 115931 August 25, 1994
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and ASSOCIATION OF PHILIPPINE
BOOK-SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as the
Commissioner of Internal Revenue and HON. GUILLERMO PARAYNO, JR., in his capacity as the
Commissioner of Customs, respondents.
Arturo M. Tolentino for and in his behalf.
Donna Celeste D. Feliciano and Juan T. David for petitioners in G.R. No. 115525.
Roco, Bunag, Kapunan, Migallos and Jardeleza for petitioner R.S. Roco.
Villaranza and Cruz for petitioners in G.R. No. 115544.
Carlos A. Raneses and Manuel M. Serrano for petitioner in G.R. No. 115754.
Salonga, Hernandez & Allado for Freedon From Debts Coalition, Inc. & Phil. Bible Society.
Estelito P. Mendoza for petitioner in G.R. No. 115852.
Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for petitioners in G.R. No. 115873.
R.B. Rodriguez & Associates for petitioners in G.R. No. 115931.
Reve A.V. Saguisag for MABINI.

MENDOZA, J.:
The value-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or
exchange of services. It is equivalent to 10% of the gross selling price or gross value in money of goods or properties
sold, bartered or exchanged or of the gross receipts from the sale or exchange of services. Republic Act No. 7716
seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National
Internal Revenue Code.
These are various suits for certiorari and prohibition, challenging the constitutionality of Republic Act No. 7716 on
various grounds summarized in the resolution of July 6, 1994 of this Court, as follows:
I. Procedural Issues:
A. Does Republic Act No. 7716 violate Art. VI, § 24 of the Constitution?
B. Does it violate Art. VI, § 26(2) of the Constitution?
C. What is the extent of the power of the Bicameral Conference Committee?
II. Substantive Issues:
A. Does the law violate the following provisions in the Bill of Rights (Art. III)?
1. §1
2. § 4
3. § 5
4. § 10
B. Does the law violate the following other provisions of the Constitution?
1. Art. VI, § 28(1)
2. Art. VI, § 28(3)
These questions will be dealt in the order they are stated above. As will presently be explained not all of these
questions are judicially cognizable, because not all provisions of the Constitution are self executing and, therefore,
judicially enforceable. The other departments of the government are equally charged with the enforcement of the
Constitution, especially the provisions relating to them.
I. PROCEDURAL ISSUES
The contention of petitioners is that in enacting Republic Act No. 7716, or the Expanded Value-Added Tax Law,
Congress violated the Constitution because, although H. No. 11197 had originated in the House of Representatives, it
was not passed by the Senate but was simply consolidated with the Senate version (S. No. 1630) in the Conference
Committee to produce the bill which the President signed into law. The following provisions of the Constitution are
cited in support of the proposition that because Republic Act No. 7716 was passed in this manner, it did not originate
in the House of Representatives and it has not thereby become a law:
Art. VI, § 24: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt,
bills of local application, and private bills shall originate exclusively in the House of Representatives,
but the Senate may propose or concur with amendments.
Id., § 26(2): No bill passed by either House shall become a law unless it has passed three readings on
separate days, and printed copies thereof in its final form have been distributed to its Members three
days before its passage, except when the President certifies to the necessity of its immediate
enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment
thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeasand nays entered in the Journal.
It appears that on various dates between July 22, 1992 and August 31, 1993, several bills 1 were introduced in the
House of Representatives seeking to amend certain provisions of the National Internal Revenue Code relative to the
value-added tax or VAT. These bills were referred to the House Ways and Means Committee which recommended for
approval a substitute measure, H. No. 11197, entitled
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116
 OF TITLE V, AND 236, 237 AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114
OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED
The bill (H. No. 11197) was considered on second reading starting November 6, 1993 and, on November 17, 1993, it
was approved by the House of Representatives after third and final reading.
It was sent to the Senate on November 23, 1993 and later referred by that body to its Committee on Ways and Means.
On February 7, 1994, the Senate Committee submitted its report recommending approval of S. No. 1630, entitled
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 105, 107, 108, AND 110 OF TITLE IV, 112 OF TITLE V, AND
236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114 and 116 OF TITLE V,
ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES
It was stated that the bill was being submitted "in substitution of Senate Bill No. 1129, taking into consideration P.S.
Res. No. 734 and H.B. No. 11197."
On February 8, 1994, the Senate began consideration of the bill (S. No. 1630). It finished debates on the bill and
approved it on second reading on March 24, 1994. On the same day, it approved the bill on third reading by the
affirmative votes of 13 of its members, with one abstention.
H. No. 11197 and its Senate version (S. No. 1630) were then referred to a conference committee which, after meeting
four times (April 13, 19, 21 and 25, 1994), recommended that "House Bill No. 11197, in consolidation with Senate
Bill No. 1630, be approved in accordance with the attached copy of the bill as reconciled and approved by the
conferees."
The Conference Committee bill, entitled "AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT)
SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION AND FOR THESE
PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES," was thereafter approved by the House of
Representatives on April 27, 1994 and by the Senate on May 2, 1994. The enrolled bill was then presented to the
President of the Philippines who, on May 5, 1994, signed it. It became Republic Act No. 7716. On May 12, 1994,
Republic Act No. 7716 was published in two newspapers of general circulation and, on May 28, 1994, it took effect,
although its implementation was suspended until June 30, 1994 to allow time for the registration of business entities.
It would have been enforced on July 1, 1994 but its enforcement was stopped because the Court, by the vote of 11 to 4
of its members, granted a temporary restraining order on June 30, 1994.
First. Petitioners' contention is that Republic Act No. 7716 did not "originate exclusively" in the House of
Representatives as required by Art. VI, §24 of the Constitution, because it is in fact the result of the consolidation of
two distinct bills, H. No. 11197 and S. No. 1630. In this connection, petitioners point out that although Art. VI, SS 24
was adopted from the American Federal Constitution, 2 it is notable in two respects: the verb "shall originate" is
qualified in the Philippine Constitution by the word "exclusively" and the phrase "as on other bills" in the American
version is omitted. This means, according to them, that to be considered as having originated in the House, Republic
Act No. 7716 must retain the essence of H. No. 11197.
This argument will not bear analysis. To begin with, it is not the law — but the revenue bill — which is required by
the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because
a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of
the whole. The possibility of a third version by the conference committee will be discussed later. At this point, what is
important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue
statute — and not only the bill which initiated the legislative process culminating in the enactment of the law — must
substantially be the same as the House bill would be to deny the Senate's power not only to "concur with
amendments" but also to "propose amendments." It would be to violate the coequality of legislative power of the two
houses of Congress and in fact make the House superior to the Senate.
The contention that the constitutional design is to limit the Senate's power in respect of revenue bills in order to
compensate for the grant to the Senate of the treaty-ratifying power 3 and thereby equalize its powers and those of the
House overlooks the fact that the powers being compared are different. We are dealing here with the legislative power
which under the Constitution is vested not in any particular chamber but in the Congress of the Philippines, consisting
of "a Senate and a House of Representatives." 4 The exercise of the treaty-ratifying power is not the exercise of
legislative power. It is the exercise of a check on the executive power. There is, therefore, no justification for
comparing the legislative powers of the House and of the Senate on the basis of the possession of such nonlegislative
power by the Senate. The possession of a similar power by the U.S. Senate 5 has never been thought of as giving it
more legislative powers than the House of Representatives.
In the United States, the validity of a provision (§ 37) imposing an ad valorem tax based on the weight of vessels,
which the U.S. Senate had inserted in the Tariff Act of 1909, was upheld against the claim that the provision was a
revenue bill which originated in the Senate in contravention of Art. I, § 7 of the U.S. Constitution. 6 Nor is the power
to amend limited to adding a provision or two in a revenue bill emanating from the House. The U.S. Senate has gone
so far as changing the whole of bills following the enacting clause and substituting its own versions. In 1883, for
example, it struck out everything after the enacting clause of a tariff bill and wrote in its place its own measure, and
the House subsequently accepted the amendment. The U.S. Senate likewise added 847 amendments to what later
became the Payne-Aldrich Tariff Act of 1909; it dictated the schedules of the Tariff Act of 1921; it rewrote an
extensive tax revision bill in the same year and recast most of the tariff bill of 1922. 7 Given, then, the power of the
Senate to propose amendments, the Senate can propose its own version even with respect to bills which are required
by the Constitution to originate in the House.
It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (S.
No. 1129) earlier filed and that what the Senate did was merely to "take [H. No. 11197] into consideration" in enacting
S. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and
then writing its own version following the enacting clause (which, it would seem, petitioners admit is an amendment
by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either
case the result are two bills on the same subject.
Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing
an increase of the public debt, private bills and bills of local application must come from the House of Representatives
on the theory that, elected as they are from the districts, the members of the House can be expected to be more
sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to
approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of
such laws.
Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill
from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. The Court
cannot, therefore, understand the alarm expressed over the fact that on March 1, 1993, eight months before the House
passed H. No. 11197, S. No. 1129 had been filed in the Senate. After all it does not appear that the Senate ever
considered it. It was only after the Senate had received H. No. 11197 on November 23, 1993 that the process of
legislation in respect of it began with the referral to the Senate Committee on Ways and Means of H. No. 11197 and
the submission by the Committee on February 7, 1994 of S. No. 1630. For that matter, if the question were simply the
priority in the time of filing of bills, the fact is that it was in the House that a bill (H. No. 253) to amend the VAT law
was first filed on July 22, 1992. Several other bills had been filed in the House before S. No. 1129 was filed in the
Senate, and H. No. 11197 was only a substitute of those earlier bills.
Second. Enough has been said to show that it was within the power of the Senate to propose S. No. 1630. We now
pass to the next argument of petitioners that S. No. 1630 did not pass three readings on separate days as required by
the Constitution 8 because the second and third readings were done on the same day, March 24, 1994. But this was
because on February 24, 1994 9 and again on March 22, 1994, 10 the President had certified S. No. 1630 as urgent. The
presidential certification dispensed with the requirement not only of printing but also that of reading the bill on
separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in
Art. VI, § 26(2) qualifies the two stated conditions before a bill can become a law: (i) the bill has passed three
readings on separate days and (ii) it has been printed in its final form and distributed three days before it is finally
approved.
In other words, the "unless" clause must be read in relation to the "except" clause, because the two are really
coordinate clauses of the same sentence. To construe the "except" clause as simply dispensing with the second
requirement in the "unless" clause (i.e., printing and distribution three days before final approval) would not only
violate the rules of grammar. It would also negate the very premise of the "except" clause: the necessity of securing
the immediate enactment of a bill which is certified in order to meet a public calamity or emergency. For if it is only
the printing that is dispensed with by presidential certification, the time saved would be so negligible as to be of any
use in insuring immediate enactment. It may well be doubted whether doing away with the necessity of printing and
distributing copies of the bill three days before the third reading would insure speedy enactment of a law in the face of
an emergency requiring the calling of a special election for President and Vice-President. Under the Constitution such
a law is required to be made within seven days of the convening of Congress in emergency session. 11
That upon the certification of a bill by the President the requirement of three readings on separate days and of printing
and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining
the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No.
5440, was passed on second and third readings in the House of Representatives on the same day (May 14, 1968) after
the bill had been certified by the President as urgent. 12
There is, therefore, no merit in the contention that presidential certification dispenses only with the requirement for
the printing of the bill and its distribution three days before its passage but not with the requirement of three readings
on separate days, also.
It is nonetheless urged that the certification of the bill in this case was invalid because there was no emergency, the
condition stated in the certification of a "growing budget deficit" not being an unusual condition in this country.
It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis of the certification.
To the contrary, by passing S. No. 1630 on second and third readings on March 24, 1994, the Senate accepted the
President's certification. Should such certification be now reviewed by this Court, especially when no evidence has
been shown that, because S. No. 1630 was taken up on second and third readings on the same day, the members of the
Senate were deprived of the time needed for the study of a vital piece of legislation?
The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law under
Art. VII, § 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the
President under Art. VI, § 23(2), is subject to judicial review because basic rights of individuals may be at hazard. But
the factual basis of presidential certification of bills, which involves doing away with procedural requirements
designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard
of review.
Petitioners also invite attention to the fact that the President certified S. No. 1630 and not H. No. 11197. That is
because S. No. 1630 was what the Senate was considering. When the matter was before the House, the President
likewise certified H. No. 9210 the pending in the House.
Third. Finally it is contended that the bill which became Republic Act No. 7716 is the bill which the Conference
Committee prepared by consolidating H. No. 11197 and S. No. 1630. It is claimed that the Conference Committee
report included provisions not found in either the House bill or the Senate bill and that these provisions were
"surreptitiously" inserted by the Conference Committee. Much is made of the fact that in the last two days of its
session on April 21 and 25, 1994 the Committee met behind closed doors. We are not told, however, whether the
provisions were not the result of the give and take that often mark the proceedings of conference committees.
Nor is there anything unusual or extraordinary about the fact that the Conference Committee met in executive
sessions. Often the only way to reach agreement on conflicting provisions is to meet behind closed doors, with only
the conferees present. Otherwise, no compromise is likely to be made. The Court is not about to take the suggestion of
a cabal or sinister motive attributed to the conferees on the basis solely of their "secret meetings" on April 21 and 25,
1994, nor read anything into the incomplete remarks of the members, marked in the transcript of stenographic notes
by ellipses. The incomplete sentences are probably due to the stenographer's own limitations or to the incoherence that
sometimes characterize conversations. William Safire noted some such lapses in recorded talks even by recent past
Presidents of the United States.
In any event, in the United States conference committees had been customarily held in executive sessions with only
the conferees and their staffs in attendance. 13 Only in November 1975 was a new rule adopted requiring open
sessions. Even then a majority of either chamber's conferees may vote in public to close the meetings. 14
As to the possibility of an entirely new bill emerging out of a Conference Committee, it has been explained:
Under congressional rules of procedure, conference committees are not expected to make any
material change in the measure at issue, either by deleting provisions to which both houses have
already agreed or by inserting new provisions. But this is a difficult provision to enforce. Note the
 problem when one house amends a proposal originating in either house by striking out everything
following the enacting clause and substituting provisions which make it an entirely new bill. The
versions are now altogether different, permitting a conference committee to draft essentially a new
bill. . . . 15
The result is a third version, which is considered an "amendment in the nature of a substitute," the only requirement
for which being that the third version be germane to the subject of the House and Senate bills. 16
Indeed, this Court recently held that it is within the power of a conference committee to include in its report an
entirely new provision that is not found either in the House bill or in the Senate bill. 17 If the committee can propose
an amendment consisting of one or two provisions, there is no reason why it cannot propose several provisions,
collectively considered as an "amendment in the nature of a substitute," so long as such amendment is germane to the
subject of the bills before the committee. After all, its report was not final but needed the approval of both houses of
Congress to become valid as an act of the legislative department. The charge that in this case the Conference
Committee acted as a third legislative chamber is thus without any basis. 18
Nonetheless, it is argued that under the respective Rules of the Senate and the House of Representatives a conference
committee can only act on the differing provisions of a Senate bill and a House bill, and that contrary to these Rules
the Conference Committee inserted provisions not found in the bills submitted to it. The following provisions are cited
in support of this contention:
Rules of the Senate
Rule XII:
§ 26. In the event that the Senate does not agree with the House of Representatives on the provision
of any bill or joint resolution, the differences shall be settled by a conference committee of both
Houses which shall meet within ten days after their composition.
The President shall designate the members of the conference committee in accordance with
subparagraph (c), Section 3 of Rule III.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in or amendments to the subject measure, and shall be signed by the conferees.
The consideration of such report shall not be in order unless the report has been filed with the
Secretary of the Senate and copies thereof have been distributed to the Members.
(Emphasis added)
Rules of the House of Representatives
Rule XIV:
§ 85. Conference Committee Reports. — In the event that the House does not agree with the Senate
on the amendments to any bill or joint resolution, the differences may be settled by conference
committees of both Chambers.
The consideration of conference committee reports shall always be in order, except when the journal
is being read, while the roll is being called or the House is dividing on any question. Each of the
pages of such reports shall be signed by the conferees. Each report shall contain a detailed,
sufficiently explicit statement of the changes in or amendments to the subject measure.
The consideration of such report shall not be in order unless copies thereof are distributed to the
Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient
that three copies of the report, signed as above provided, are deposited in the office of the Secretary
General.
(Emphasis added)
To be sure, nothing in the Rules limits a conference committee to a consideration of conflicting provisions. But Rule
XLIV, § 112 of the Rules of the Senate is cited to the effect that "If there is no Rule applicable to a specific case the
precedents of the Legislative Department of the Philippines shall be resorted to, and as a supplement of these, the
Rules contained in Jefferson's Manual." The following is then quoted from the Jefferson's Manual:
 The managers of a conference must confine themselves to the differences committed to them. . . and
may not include subjects not within disagreements, even though germane to a question in issue.
Note that, according to Rule XLIX, § 112, in case there is no specific rule applicable, resort must be to the legislative
practice. The Jefferson's Manual is resorted to only as supplement. It is common place in Congress that conference
committee reports include new matters which, though germane, have not been committed to the committee. This
practice was admitted by Senator Raul S. Roco, petitioner in G.R. No. 115543, during the oral argument in these cases.
Whatever, then, may be provided in the Jefferson's Manual must be considered to have been modified by the
legislative practice. If a change is desired in the practice it must be sought in Congress since this question is not
covered by any constitutional provision but is only an internal rule of each house. Thus, Art. VI, § 16(3) of the
Constitution provides that "Each House may determine the rules of its proceedings. . . ."
This observation applies to the other contention that the Rules of the two chambers were likewise disregarded in the
preparation of the Conference Committee Report because the Report did not contain a "detailed and sufficiently
explicit statement of changes in, or amendments to, the subject measure." The Report used brackets and capital letters
to indicate the changes. This is a standard practice in bill-drafting. We cannot say that in using these marks and
symbols the Committee violated the Rules of the Senate and the House. Moreover, this Court is not the proper forum
for the enforcement of these internal Rules. To the contrary, as we have already ruled, "parliamentary rules are merely
procedural and with their observance the courts have no concern." 19 Our concern is with the procedural requirements
of the Constitution for the enactment of laws. As far as these requirements are concerned, we are satisfied that they
have been faithfully observed in these cases.
Nor is there any reason for requiring that the Committee's Report in these cases must have undergone three readings in
each of the two houses. If that be the case, there would be no end to negotiation since each house may seek
modifications of the compromise bill. The nature of the bill, therefore, requires that it be acted upon by each house on
a "take it or leave it" basis, with the only alternative that if it is not approved by both houses, another conference
committee must be appointed. But then again the result would still be a compromise measure that may not be wholly
satisfying to both houses.
Art. VI, § 26(2) must, therefore, be construed as referring only to bills introduced for the first time in either house of
Congress, not to the conference committee report. For if the purpose of requiring three readings is to give members of
Congress time to study bills, it cannot be gainsaid that H. No. 11197 was passed in the House after three readings; that
in the Senate it was considered on first reading and then referred to a committee of that body; that although the Senate
committee did not report out the House bill, it submitted a version (S. No. 1630) which it had prepared by "taking into
consideration" the House bill; that for its part the Conference Committee consolidated the two bills and prepared a
compromise version; that the Conference Committee Report was thereafter approved by the House and the Senate,
presumably after appropriate study by their members. We cannot say that, as a matter of fact, the members of
Congress were not fully informed of the provisions of the bill. The allegation that the Conference Committee usurped
the legislative power of Congress is, in our view, without warrant in fact and in law.
Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its
favor. Our cases 20 manifest firm adherence to the rule that an enrolled copy of a bill is conclusive not only of its
provisions but also of its due enactment. Not even claims that a proposed constitutional amendment was invalid
because the requisite votes for its approval had not been obtained 21 or that certain provisions of a statute had been
"smuggled" in the printing of the bill 22 have moved or persuaded us to look behind the proceedings of a coequal
branch of the government. There is no reason now to depart from this rule.
No claim is here made that the "enrolled bill" rule is absolute. In fact in one case 23 we "went behind" an enrolled bill
and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate in
view of the fact that the President of the Senate himself, who had signed the enrolled bill, admitted a mistake and
withdrew his signature, so that in effect there was no longer an enrolled bill to consider.
But where allegations that the constitutional procedures for the passage of bills have not been observed have no more
basis than another allegation that the Conference Committee "surreptitiously" inserted provisions into a bill which it
had prepared, we should decline the invitation to go behind the enrolled copy of the bill. To disregard the "enrolled
bill" rule in such cases would be to disregard the respect due the other two departments of our government.
Fifth. An additional attack on the formal validity of Republic Act No. 7716 is made by the Philippine Airlines, Inc.,
petitioner in G.R. No. 11582, namely, that it violates Art. VI, § 26(1) which provides that "Every bill passed by
Congress shall embrace only one subject which shall be expressed in the title thereof." It is contended that neither H.
No. 11197 nor S. No. 1630 provided for removal of exemption of PAL transactions from the payment of the VAT and
that this was made only in the Conference Committee bill which became Republic Act No. 7716 without reflecting
this fact in its title.
The title of Republic Act No. 7716 is:
AN ACT RESTRUCTURING THE VALUE- ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX
BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING
AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES.
Among the provisions of the NIRC amended is § 103, which originally read:
§ 103. Exempt transactions. — The following shall be exempt from the value-added tax:
....
(q) Transactions which are exempt under special laws or international agreements to which the
Philippines is a signatory. Among the transactions exempted from the VAT were those of PAL
because it was exempted under its franchise (P.D. No. 1590) from the payment of all "other taxes . . .
now or in the near future," in consideration of the payment by it either of the corporate income tax or
a franchise tax of 2%.
As a result of its amendment by Republic Act No. 7716, § 103 of the NIRC now provides:
§ 103. Exempt transactions. — The following shall be exempt from the value-added tax:
....
(q) Transactions which are exempt under special laws, except those granted under Presidential
Decree Nos. 66, 529, 972, 1491, 1590. . . .
The effect of the amendment is to remove the exemption granted to PAL, as far as the VAT is concerned.
The question is whether this amendment of § 103 of the NIRC is fairly embraced in the title of Republic Act No.
7716, although no mention is made therein of P.D. No. 1590 as among those which the statute amends. We think it is,
since the title states that the purpose of the statute is to expand the VAT system, and one way of doing this is to widen
its base by withdrawing some of the exemptions granted before. To insist that P.D. No. 1590 be mentioned in the title
of the law, in addition to § 103 of the NIRC, in which it is specifically referred to, would be to insist that the title of a
bill should be a complete index of its content.
The constitutional requirement that every bill passed by Congress shall embrace only one subject which shall be
expressed in its title is intended to prevent surprise upon the members of Congress and to inform the people of
pending legislation so that, if they wish to, they can be heard regarding it. If, in the case at bar, petitioner did not know
before that its exemption had been withdrawn, it is not because of any defect in the title but perhaps for the same
reason other statutes, although published, pass unnoticed until some event somehow calls attention to their existence.
Indeed, the title of Republic Act No. 7716 is not any more general than the title of PAL's own franchise under P.D. No.
1590, and yet no mention is made of its tax exemption. The title of P.D. No. 1590 is:
AN ACT GRANTING A NEW FRANCHISE TO PHILIPPINE AIRLINES, INC. TO ESTABLISH,
OPERATE, AND MAINTAIN AIR-TRANSPORT SERVICES IN THE PHILIPPINES AND
BETWEEN THE PHILIPPINES AND OTHER COUNTRIES.
The trend in our cases is to construe the constitutional requirement in such a manner that courts do not unduly
interfere with the enactment of necessary legislation and to consider it sufficient if the title expresses the general
subject of the statute and all its provisions are germane to the general subject thus expressed. 24
It is further contended that amendment of petitioner's franchise may only be made by special law, in view of § 24 of
P.D. No. 1590 which provides:
This franchise, as amended, or any section or provision hereof may only be modified, amended, or
repealed expressly by a special law or decree that shall specifically modify, amend, or repeal this
franchise or any section or provision thereof.
This provision is evidently intended to prevent the amendment of the franchise by mere implication resulting from the
enactment of a later inconsistent statute, in consideration of the fact that a franchise is a contract which can be altered
only by consent of the parties. Thus in Manila Railroad Co. v.
Rafferty, 25 it was held that an Act of the U.S. Congress, which provided for the payment of tax on certain goods and
articles imported into the Philippines, did not amend the franchise of plaintiff, which exempted it from all taxes except
those mentioned in its franchise. It was held that a special law cannot be amended by a general law.
In contrast, in the case at bar, Republic Act No. 7716 expressly amends PAL's franchise (P.D. No. 1590) by
specifically excepting from the grant of exemptions from the VAT PAL's exemption under P.D. No. 1590. This is
within the power of Congress to do under Art. XII, § 11 of the Constitution, which provides that the grant of a
franchise for the operation of a public utility is subject to amendment, alteration or repeal by Congress when the
common good so requires.
II. SUBSTANTIVE ISSUES
A. Claims of Press Freedom, Freedom of Thought and Religious
Freedom
The Philippine Press Institute (PPI), petitioner in G.R. No. 115544, is a nonprofit organization of newspaper
publishers established for the improvement of journalism in the Philippines. On the other hand, petitioner in G.R. No.
115781, the Philippine Bible Society (PBS), is a nonprofit organization engaged in the printing and distribution of
bibles and other religious articles. Both petitioners claim violations of their rights under § § 4 and 5 of the Bill of
Rights as a result of the enactment of the VAT Law.
The PPI questions the law insofar as it has withdrawn the exemption previously granted to the press under § 103 (f) of
the NIRC. Although the exemption was subsequently restored by administrative regulation with respect to the
circulation income of newspapers, the PPI presses its claim because of the possibility that the exemption may still be
removed by mere revocation of the regulation of the Secretary of Finance. On the other hand, the PBS goes so far as
to question the Secretary's power to grant exemption for two reasons: (1) The Secretary of Finance has no power to
grant tax exemption because this is vested in Congress and requires for its exercise the vote of a majority of all its
members 26 and (2) the Secretary's duty is to execute the law.
§ 103 of the NIRC contains a list of transactions exempted from VAT. Among the transactions previously granted
exemption were:
(f) Printing, publication, importation or sale of books and any newspaper, magazine, review, or
bulletin which appears at regular intervals with fixed prices for subscription and sale and which is
devoted principally to the publication of advertisements.
Republic Act No. 7716 amended § 103 by deleting ¶ (f) with the result that print media became subject to the VAT
with respect to all aspects of their operations. Later, however, based on a memorandum of the Secretary of Justice,
respondent Secretary of Finance issued Revenue Regulations No. 11-94, dated June 27, 1994, exempting the
"circulation income of print media pursuant to § 4 Article III of the 1987 Philippine Constitution guaranteeing against
abridgment of freedom of the press, among others." The exemption of "circulation income" has left income from
advertisements still subject to the VAT.
It is unnecessary to pass upon the contention that the exemption granted is beyond the authority of the Secretary of
Finance to give, in view of PPI's contention that even with the exemption of the circulation revenue of print media
there is still an unconstitutional abridgment of press freedom because of the imposition of the VAT on the gross
receipts of newspapers from advertisements and on their acquisition of paper, ink and services for publication. Even
on the assumption that no exemption has effectively been granted to print media transactions, we find no violation of
press freedom in these cases.
To be sure, we are not dealing here with a statute that on its face operates in the area of press freedom. The PPI's claim
is simply that, as applied to newspapers, the law abridges press freedom. Even with due recognition of its high estate
and its importance in a democratic society, however, the press is not immune from general regulation by the State. It
has been held:
The publisher of a newspaper has no immunity from the application of general laws. He has no
special privilege to invade the rights and liberties of others. He must answer for libel. He may be
 punished for contempt of court. . . . Like others, he must pay equitable and nondiscriminatory taxes
on his business. . . . 27
The PPI does not dispute this point, either.
What it contends is that by withdrawing the exemption previously granted to print media transactions involving
printing, publication, importation or sale of newspapers, Republic Act No. 7716 has singled out the press for
discriminatory treatment and that within the class of mass media the law discriminates against print media by giving
broadcast media favored treatment. We have carefully examined this argument, but we are unable to find a differential
treatment of the press by the law, much less any censorial motivation for its enactment. If the press is now required to
pay a value-added tax on its transactions, it is not because it is being singled out, much less targeted, for special
treatment but only because of the removal of the exemption previously granted to it by law. The withdrawal of
exemption is all that is involved in these cases. Other transactions, likewise previously granted exemption, have been
delisted as part of the scheme to expand the base and the scope of the VAT system. The law would perhaps be open to
the charge of discriminatory treatment if the only privilege withdrawn had been that granted to the press. But that is
not the case.
The situation in the case at bar is indeed a far cry from those cited by the PPI in support of its claim that Republic Act
No. 7716 subjects the press to discriminatory taxation. In the cases cited, the discriminatory purpose was clear either
from the background of the law or from its operation. For example, in Grosjean v. American Press Co., 28 the law
imposed a license tax equivalent to 2% of the gross receipts derived from advertisements only on newspapers which
had a circulation of more than 20,000 copies per week. Because the tax was not based on the volume of advertisement
alone but was measured by the extent of its circulation as well, the law applied only to the thirteen large newspapers in
Louisiana, leaving untaxed four papers with circulation of only slightly less than 20,000 copies a week and 120
weekly newspapers which were in serious competition with the thirteen newspapers in question. It was well known
that the thirteen newspapers had been critical of Senator Huey Long, and the Long-dominated legislature of Louisiana
respondent by taxing what Long described as the "lying newspapers" by imposing on them "a tax on lying." The effect
of the tax was to curtail both their revenue and their circulation. As the U.S. Supreme Court noted, the tax was "a
deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is
entitled in virtue of the constitutional guaranties." 29 The case is a classic illustration of the warning that the power to
tax is the power to destroy.
In the other case 30 invoked by the PPI, the press was also found to have been singled out because everything was
exempt from the "use tax" on ink and paper, except the press. Minnesota imposed a tax on the sales of goods in that
state. To protect the sales tax, it enacted a complementary tax on the privilege of "using, storing or consuming in that
state tangible personal property" by eliminating the residents' incentive to get goods from outside states where the
sales tax might be lower. The Minnesota Star Tribune was exempted from both taxes from 1967 to 1971. In 1971,
however, the state legislature amended the tax scheme by imposing the "use tax" on the cost of paper and ink used for
publication. The law was held to have singled out the press because (1) there was no reason for imposing the "use tax"
since the press was exempt from the sales tax and (2) the "use tax" was laid on an "intermediate transaction rather than
the ultimate retail sale." Minnesota had a heavy burden of justifying the differential treatment and it failed to do so. In
addition, the U.S. Supreme Court found the law to be discriminatory because the legislature, by again amending the
law so as to exempt the first $100,000 of paper and ink used, further narrowed the coverage of the tax so that "only a
handful of publishers pay any tax at all and even fewer pay any significant amount of tax." 31 The discriminatory
purpose was thus very clear.
More recently, in Arkansas Writers' Project, Inc. v. Ragland, 32 it was held that a law which taxed general interest
magazines but not newspapers and religious, professional, trade and sports journals was discriminatory because while
the tax did not single out the press as a whole, it targeted a small group within the press. What is more, by
differentiating on the basis of contents (i.e., between general interest and special interests such as religion or sports)
the law became "entirely incompatible with the First Amendment's guarantee of freedom of the press."
These cases come down to this: that unless justified, the differential treatment of the press creates risks of suppression
of expression. In contrast, in the cases at bar, the statute applies to a wide range of goods and services. The argument
that, by imposing the VAT only on print media whose gross sales exceeds P480,000 but not more than P750,000, the
law discriminates 33 is without merit since it has not been shown that as a result the class subject to tax has been
unreasonably narrowed. The fact is that this limitation does not apply to the press along but to all sales. Nor is
impermissible motive shown by the fact that print media and broadcast media are treated differently. The press is
taxed on its transactions involving printing and publication, which are different from the transactions of broadcast
media. There is thus a reasonable basis for the classification.
The cases canvassed, it must be stressed, eschew any suggestion that "owners of newspapers are immune from any
forms of ordinary taxation." The license tax in the Grosjean case was declared invalid because it was "one single in
kind, with a long history of hostile misuse against the freedom of the
press." 34 On the other hand, Minneapolis Star acknowledged that "The First Amendment does not prohibit all
regulation of the press [and that] the States and the Federal Government can subject newspapers to generally
applicable economic regulations without creating constitutional problems." 35
What has been said above also disposes of the allegations of the PBS that the removal of the exemption of printing,
publication or importation of books and religious articles, as well as their printing and publication, likewise violates
freedom of thought and of conscience. For as the U.S. Supreme Court unanimously held in Jimmy Swaggart
Ministries v. Board of Equalization, 36 the Free Exercise of Religion Clause does not prohibit imposing a generally
applicable sales and use tax on the sale of religious materials by a religious organization.
This brings us to the question whether the registration provision of the law, 37 although of general applicability,
nonetheless is invalid when applied to the press because it lays a prior restraint on its essential freedom. The case
of American Bible Society v. City of Manila 38 is cited by both the PBS and the PPI in support of their contention that
the law imposes censorship. There, this Court held that an ordinance of the City of Manila, which imposed a license
fee on those engaged in the business of general merchandise, could not be applied to the appellant's sale of bibles and
other religious literature. This Court relied on Murdock v. Pennsylvania, 39 in which it was held that, as a license fee is
fixed in amount and unrelated to the receipts of the taxpayer, the license fee, when applied to a religious sect, was
actually being imposed as a condition for the exercise of the sect's right under the Constitution. For that reason, it was
held, the license fee "restrains in advance those constitutional liberties of press and religion and inevitably tends to
suppress their exercise." 40
But, in this case, the fee in § 107, although a fixed amount (P1,000), is not imposed for the exercise of a privilege but
only for the purpose of defraying part of the cost of registration. The registration requirement is a central feature of the
VAT system. It is designed to provide a record of tax credits because any person who is subject to the payment of the
VAT pays an input tax, even as he collects an output tax on sales made or services rendered. The registration fee is
thus a mere administrative fee, one not imposed on the exercise of a privilege, much less a constitutional right.
For the foregoing reasons, we find the attack on Republic Act No. 7716 on the ground that it offends the free speech,
press and freedom of religion guarantees of the Constitution to be without merit. For the same reasons, we find the
claim of the Philippine Educational Publishers Association (PEPA) in G.R. No. 115931 that the increase in the price of
books and other educational materials as a result of the VAT would violate the constitutional mandate to the
government to give priority to education, science and technology (Art. II, § 17) to be untenable.

B. Claims of Regressivity, Denial of Due Process, Equal Protection,

and Impairment
of Contracts
There is basis for passing upon claims that on its face the statute violates the guarantees of freedom of speech, press
and religion. The possible "chilling effect" which it may have on the essential freedom of the mind and conscience
and the need to assure that the channels of communication are open and operating importunately demand the exercise
of this Court's power of review.
There is, however, no justification for passing upon the claims that the law also violates the rule that taxation must be
progressive and that it denies petitioners' right to due process and that equal protection of the laws. The reason for this
different treatment has been cogently stated by an eminent authority on constitutional law thus: "[W]hen freedom of
the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled it is the
lawmakers' judgment that commands respect. This dual standard may not precisely reverse the presumption of
constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process
clause." 41
Indeed, the absence of threat of immediate harm makes the need for judicial intervention less evident and underscores
the essential nature of petitioners' attack on the law on the grounds of regressivity, denial of due process and equal
protection and impairment of contracts as a mere academic discussion of the merits of the law. For the fact is that
there have even been no notices of assessments issued to petitioners and no determinations at the administrative levels
of their claims so as to illuminate the actual operation of the law and enable us to reach sound judgment regarding so
fundamental questions as those raised in these suits.
Thus, the broad argument against the VAT is that it is regressive and that it violates the requirement that "The rule of
taxation shall be uniform and equitable [and] Congress shall evolve a progressive system of taxation." 42Petitioners in
G.R. No. 115781 quote from a paper, entitled "VAT Policy Issues: Structure, Regressivity, Inflation and Exports" by
Alan A. Tait of the International Monetary Fund, that "VAT payment by low-income households will be a higher
proportion of their incomes (and expenditures) than payments by higher-income households. That is, the VAT will be
regressive." Petitioners contend that as a result of the uniform 10% VAT, the tax on consumption goods of those who
are in the higher-income bracket, which before were taxed at a rate higher than 10%, has been reduced, while basic
commodities, which before were taxed at rates ranging from 3% to 5%, are now taxed at a higher rate.
Just as vigorously as it is asserted that the law is regressive, the opposite claim is pressed by respondents that in fact it
distributes the tax burden to as many goods and services as possible particularly to those which are within the reach of
higher-income groups, even as the law exempts basic goods and services. It is thus equitable. The goods and
properties subject to the VAT are those used or consumed by higher-income groups. These include real properties held
primarily for sale to customers or held for lease in the ordinary course of business, the right or privilege to use
industrial, commercial or scientific equipment, hotels, restaurants and similar places, tourist buses, and the like. On
the other hand, small business establishments, with annual gross sales of less than P500,000, are exempted. This,
according to respondents, removes from the coverage of the law some 30,000 business establishments. On the other
hand, an occasional paper 43 of the Center for Research and Communication cities a NEDA study that the VAT has
minimal impact on inflation and income distribution and that while additional expenditure for the lowest income class
is only P301 or 1.49% a year, that for a family earning P500,000 a year or more is P8,340 or 2.2%.
Lacking empirical data on which to base any conclusion regarding these arguments, any discussion whether the VAT
is regressive in the sense that it will hit the "poor" and middle-income group in society harder than it will the "rich," as
the Cooperative Union of the Philippines (CUP) claims in G.R. No. 115873, is largely an academic exercise. On the
other hand, the CUP's contention that Congress' withdrawal of exemption of producers cooperatives, marketing
cooperatives, and service cooperatives, while maintaining that granted to electric cooperatives, not only goes against
the constitutional policy to promote cooperatives as instruments of social justice (Art. XII, § 15) but also denies such
cooperatives the equal protection of the law is actually a policy argument. The legislature is not required to adhere to a
policy of "all or none" in choosing the subject of taxation.44
Nor is the contention of the Chamber of Real Estate and Builders Association (CREBA), petitioner in G.R. 115754,
that the VAT will reduce the mark up of its members by as much as 85% to 90% any more concrete. It is a mere
allegation. On the other hand, the claim of the Philippine Press Institute, petitioner in G.R. No. 115544, that the VAT
will drive some of its members out of circulation because their profits from advertisements will not be enough to pay
for their tax liability, while purporting to be based on the financial statements of the newspapers in question, still falls
short of the establishment of facts by evidence so necessary for adjudicating the question whether the tax is oppressive
and confiscatory.
Indeed, regressivity is not a negative standard for courts to enforce. What Congress is required by the Constitution to
do is to "evolve a progressive system of taxation." This is a directive to Congress, just like the directive to it to give
priority to the enactment of laws for the enhancement of human dignity and the reduction of social, economic and
political inequalities (Art. XIII, § 1), or for the promotion of the right to "quality education" (Art. XIV, § 1). These
provisions are put in the Constitution as moral incentives to legislation, not as judicially enforceable rights.
At all events, our 1988 decision in Kapatiran 45 should have laid to rest the questions now raised against the VAT.
There similar arguments made against the original VAT Law (Executive Order No. 273) were held to be hypothetical,
with no more basis than newspaper articles which this Court found to be "hearsay and [without] evidentiary value." As
Republic Act No. 7716 merely expands the base of the VAT system and its coverage as provided in the original VAT
Law, further debate on the desirability and wisdom of the law should have shifted to Congress.
Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the imposition of the VAT on
the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would violate the
constitutional provision that "No law impairing the obligation of contracts shall be passed." It is enough to say that the
parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of
the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the
reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order.
The policy of protecting contracts against impairment presupposes the maintenance of a government which retains
adequate authority to secure the peace and good order of society. 46
In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation
save only where a tax exemption has been granted for a valid consideration. 47 Such is not the case of PAL in G.R. No.
115852, and we do not understand it to make this claim. Rather, its position, as discussed above, is that the removal of
its tax exemption cannot be made by a general, but only by a specific, law.
The substantive issues raised in some of the cases are presented in abstract, hypothetical form because of the lack of a
concrete record. We accept that this Court does not only adjudicate private cases; that public actions by "non-
Hohfeldian" 48 or ideological plaintiffs are now cognizable provided they meet the standing requirement of the
Constitution; that under Art. VIII, § 1, ¶ 2 the Court has a "special function" of vindicating constitutional rights.
Nonetheless the feeling cannot be escaped that we do not have before us in these cases a fully developed factual
record that alone can impart to our adjudication the impact of actuality 49 to insure that decision-making is informed
and well grounded. Needless to say, we do not have power to render advisory opinions or even jurisdiction over
petitions for declaratory judgment. In effect we are being asked to do what the Conference Committee is precisely
accused of having done in these cases — to sit as a third legislative chamber to review legislation.
We are told, however, that the power of judicial review is not so much power as it is duty imposed on this Court by the
Constitution and that we would be remiss in the performance of that duty if we decline to look behind the barriers set
by the principle of separation of powers. Art. VIII, § 1, ¶ 2 is cited in support of this view:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
To view the judicial power of review as a duty is nothing new. Chief Justice Marshall said so in 1803, to justify the
assertion of this power in Marbury v. Madison:
It is emphatically the province and duty of the judicial department to say what the law is. Those who
apply the rule to particular cases must of necessity expound and interpret that rule. If two laws
conflict with each other, the courts must decide on the operation of each. 50
Justice Laurel echoed this justification in 1936 in Angara v. Electoral Commission:
And when the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. 51
This conception of the judicial power has been affirmed in several
cases 52 of this Court following Angara.
It does not add anything, therefore, to invoke this "duty" to justify this Court's intervention in what is essentially a
case that at best is not ripe for adjudication. That duty must still be performed in the context of a concrete case or
controversy, as Art. VIII, § 5(2) clearly defines our jurisdiction in terms of "cases," and nothing but "cases." That the
other departments of the government may have committed a grave abuse of discretion is not an independent ground
for exercising our power. Disregard of the essential limits imposed by the case and controversy requirement can in the
long run only result in undermining our authority as a court of law. For, as judges, what we are called upon to render
is judgment according to law, not according to what may appear to be the opinion of the day.
_______________________________
In the preceeding pages we have endeavored to discuss, within limits, the validity of Republic Act No. 7716 in its
formal and substantive aspects as this has been raised in the various cases before us. To sum up, we hold:
(1) That the procedural requirements of the Constitution have been complied with by Congress in the enactment of the
statute;
(2) That judicial inquiry whether the formal requirements for the enactment of statutes — beyond those prescribed by
the Constitution — have been observed is precluded by the principle of separation of powers;
(3) That the law does not abridge freedom of speech, expression or the press, nor interfere with the free exercise of
religion, nor deny to any of the parties the right to an education; and
(4) That, in view of the absence of a factual foundation of record, claims that the law is regressive, oppressive and
confiscatory and that it violates vested rights protected under the Contract Clause are prematurely raised and do not
justify the grant of prospective relief by writ of prohibition.
WHEREFORE, the petitions in these cases are DISMISSED.
Bidin, Quiason, and Kapunan, JJ., concur.

Separate Opinions

NARVASA, C.J.:
I fully concur with the conclusions set forth in the scholarly opinion of my learned colleague, Mr. Justice Vicente V.
Mendoza. I write this separate opinion to express my own views relative to the procedural issues raised by the various
petitions and death with by some other Members of the Court in their separate opinions.
By their very nature, it would seem, discussions of constitutional issues prove fertile ground for a not uncommon
phenomenon: debate marked by passionate partisanship amounting sometimes to impatience with adverse views, an
eagerness on the part of the proponents on each side to assume the role of, or be perceived as, staunch defenders of
constitutional principles, manifesting itself in flights of rhetoric, even hyperbole. The peril in this, obviously, is a
diminution of objectivity — that quality which, on the part of those charged with the duty and authority of interpreting
the fundamental law, is of the essence of their great function. For the Court, more perhaps than for any other person or
group, it is necessary to maintain that desirable objectivity. It must make certain that on this as on any other occasion,
the judicial function is meticulously performed, the facts ascertained as comprehensively and as accurately as
possible, all the issues particularly identified, all the arguments clearly understood; else, it may itself be accused, by
its own members or by others, of a lack of adherence to, or a careless observance of, its own procedures, the
signatures of its individual members on its enrolled verdicts notwithstanding.
In the matter now before the Court, and whatever reservations some people may entertain about their intellectual
limitations or moral scruples, I cannot bring myself to accept the thesis which necessarily implies that the members of
our august Congress, in enacting the expanded VAT law, exposed their ignorance, or indifference to the observance, of
the rules of procedure set down by the Constitution or by their respective chambers, or what is worse, deliberately
ignored those rules for some yet undiscovered purpose nefarious in nature, or at least some purpose other than the
public weal; or that a few of their fellows, acting as a bicameral conference committee, by devious schemes and
cunning maneuvers, and in conspiracy with officials of the Executive Department and others, succeeded in "pulling
the wool over the eyes" of all their other colleagues and foisting on them a bill containing provisions that neither
chamber of our bicameral legislature conceived or contemplated. This is the thesis that the petitioners would have this
Court approve. It is a thesis I consider bereft of any factual or logical foundation.
Other than the bare declarations of some of the petitioners, or arguments from the use and import of the language
employed in the relevant documents and records, there is no evidence before the Court adequate to support a finding
that the legislators concerned, whether of the upper or lower chamber, acted otherwise than in good faith, in the honest
discharge of their functions, in the sincere belief that the established procedures were being regularly observed or, at
least, that there occurred no serious or fatal deviation therefrom. There is no evidence on which reasonably to rest a
conclusion that any executive or other official took part in or unduly influenced the proceedings before the bicameral
conference committee, or that the members of the latter were motivated by a desire to surreptitiously introduce
improper revisions in the bills which they were required to reconcile, or that after agreement had been reached on the
mode and manner of reconciliation of the "disagreeing provisions," had resorted to stratragems or employed under-
handed ploys to ensure their approval and adoption by either House. Neither is there any proof that in voting on the
Bicameral Conference Committee (BCC) version of the reconciled bills, the members of the Senate and the House did
so in ignorance of, or without understanding, the contents thereof or the bills therein reconciled.
Also unacceptable is the theory that since the Constitution requires appropriation and revenue bills to originate
exclusively in the House of Representatives, it is improper if not unconstitutional for the Senate to formulate, or even
think about formulating, its own draft of this type of measure in anticipation of receipt of one transmitted by the lower
Chamber. This is specially cogent as regards much-publicized suggestions for legislation (like the expanded VAT
Law) emanating from one or more legislators, or from the Executive Department, or the private sector, etc. which
understandably could be expected to forthwith generate much Congressional cogitation.
Exclusive origination, I submit, should have no reference to time of conception. As a practical matter, origination
should refer to the affirmative act which effectively puts the bicameral legislative procedure in motion, i.e., the
transmission by one chamber to the other of a bill for its adoption. This is the purposeful act which sets the legislative
machinery in operation to effectively lead to the enactment of a statute. Until this transmission takes place, the
formulation and discussions, or the reading for three or more times of proposed measures in either chamber, would be
meaningless in the context of the activity leading towards concrete legislation. Unless transmitted to the other
chamber, a bill prepared by either house cannot possibly become law. In other words, the first affirmative, efficacious
step, the operative act as it were, leading to actual enactment of a statute, is the transmission of a bill from one house
to the other for action by the latter. This is the origination that is spoken of in the Constitution in its Article VI, Section
24, in reference to appropriation, revenue, or tariff bills, etc.
It may be that in the Senate, revenue or tax measures are discussed, even drafted, and this before a similar activity
takes place in the House. This is of no moment, so long as those measures or bill remain in the Senate and are not sent
over the House. There is no origination of revenue or tax measures by the Senate in this case. However, once the
House completes the drawing up of a similar tax measure in accordance with the prescribed procedure, ven if this is
done subsequent to the Senate’s own measure — indeed, even if this be inspired by information that measure of the
Senate — and after third reading transmits its bill to the Senate, there is origination by (or in) the House within the
contemplation of the Constitution.
So it is entirely possible, as intimated, that in expectation of the receipt of a revenue or tax bill from the House of
Representatives, the Senate commences deliberations on its own concept of such a legislative measure. This, possibly
to save time, so that when the House bill raches it, its thoughts and views on the matter are already formed and even
reduced to writing in the form of a draft statute. This should not be thought ilegal, as interdicted by the Constitution.
What the Constitution prohibits is for the Senate to begin the legislative process first, by sending its own revenue bill
to the House of Representatives for its consideration and action. This is the initiation that is prohibited to the Senate.
But petitioners claims that this last was what in fact happened, that the went through the legislative mill and was
finally approved as R.A. No. 7716, was the Senate version, SB 1630. This is disputed by the respondents. They claim
it was House Bill 11197 that, after being transmitted to the Senate, was referred after first reading to its Committee on
Ways and Means; was reported out by said Committee; underwent second and third readings, was sent to the
bicameral conference committee and then, after appropriate proceedings therein culminating in extensive amendments
thereof, was finally approved by both Houses and became the Expanded VAT Law.
On whose side does the truth lie? If it is not possible to make that determination from the pleadings and records before
this Court, shall it require evidence to be presented? No, on both law and principle. The Court will reject a case where
the legal issues raised, whatever they may be, depend for their resolution on still unsettled questions of fact.
Petitioners may not, by raising what are Court to assume the role of a trier of facts. It is on the contrary their
obligation, before raising those questions to this Court, to see to it that all issues of fact are settled in accordance with
the procedures laid down by law for proof of facts. Failing this, petitioners would have only themselves to blame for a
peremptory dismissal.
Now, what is really proven about what happened to HB 11197 after it was transmitted to the Senate? It seems to be
admitted on all sides that after going through first reading, HB 11197 was referred to the Committee on Ways and
Means chaired by Senator Ernesto Herrera.
It is however surmised that after this initial step, HB 11197 was never afterwards deliberated on in the Senate, that it
was there given nothing more than a "passing glance," and that it never went through a proper second and third
reading. There is no competent proof to substantiate this claim. What is certain is that on February 7, 1994, the Senate
Committee on Ways and Means submitted its Report (No. 349) stating that HB 11197 was considered, and
recommending that SB 1630 be approved "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No.
734 1 and H.B. No. 11197." This Report made known to the Senate, and clearly indicates, that H.B. No. 11197 was
indeed deliberated on by the Committee; in truth, as Senator Herrera pointed out, the BCC later "agreed to adopt (a
broader coverage of the VAT) which is closely adhering to the Senate version ** ** with some new provisions or
amendments." The plain implication is that the Senate Committee had indeed discussed HB 11197 in comparison with
the inconsistent parts of SB 1129 and afterwards proposed amendments to the former in the form of a new bill (No.
1630) more closely akin to the Senate bill (No. 1129).
And it is as reasonable to suppose as not that later, during the second and third readings on March 24, 1994, the
Senators, assembled as a body, had before them copies of HB 11197 and SB 1129, as well as of the Committee's new
"SB 1630" that had been recommended for their approval, or at the very least were otherwise perfectly aware that they
were considering the particular provisions of these bills. That there was such a deliberation in the Senate on HB 11197
in light of inconsistent portions of SB 1630, may further be necessarily inferred from the request, made by the Senate
on the same day, March 24, 1994, for the convocation of a bicameral conference committee to reconcile "the
disagreeing provisions of said bill (SB 1630) and House Bill No. 11197," a request that could not have been made had
not the Senators more or less closely examined the provisions of HB 11197 and compared them with those of the
counterpart Senate measures.
Were the proceedings before the bicameral conference committee fatally flawed? The affirmative is suggested because
the committee allegedly overlooked or ignored the fact that SB 1630 could not validly originate in the Senate, and that
HB 11197 and SB 1630 never properly passed both chambers. The untenability of these contentions has already been
demonstrated. Now, demonstration of the indefensibility of other arguments purporting to establish the impropriety of
the BCC proceedings will be attempted.
There is the argument, for instance, that the conference committee never used HB 11197 even as "frame of reference"
because it does not appear that the suggestion therefor (made by House Penal Chairman Exequiel Javier at the
bicameral conference committee's meeting on April 19, 1994, with the concurrence of Senator Maceda) was ever
resolved, the minutes being regrettably vague as to what occurred after that suggestion was made. It is, however, as
reasonable to assume that it was, as it was not, given the vagueness of the minutes already alluded to. In fact, a
reading of the BCC Report persuasively demonstrates that HB 11197 was not only utilized as a "frame of reference"
but actually discussed and deliberated on.
Said BCC Report pertinently states: 2
CONFERENCE COMMITTEE REPORT
The Conference Committee on the disagreeing provisions of House Bill No. 11197, entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 1013, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116
OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113SD AND
114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED
and Senate Bill No. 1630 entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 1 106, 107, 108 AND 110 OF TITLE IV, 112, 115, 117 AND 121
OF TITLE V, ACND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 1113, 114,
116, 119 AND 120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES
having met, after full and free conference, has agreed to recommend and do hereby recommend to
their respective Houses that House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the
conferees.
Approved.
The Report, it will be noted, explicitly adverts to House Bill No. 11197, it being in fact mentioned ahead of Senate
Bill No. 1630; graphically shows the very close identity of the subjects of both bills (indicated in their respective
titles); and clearly says that the committee met in "full and free conference" on the "disagreeing provisions" of both
bills (obviously in an effort to reconcile them); and that reconciliation of said "disagreeing provisions" had been
effected, the BCC having agreed that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved
in accordance with the attached copy of the bill as reconciled and approved by the conferees."
It may be concluded, in other words, that, conformably to the procedure provided in the Constitution with which all
the Members of the bicameral conference committee cannot but be presumed to be familiar, and no proof to the
contrary having been adduced on the point, it was the original bill (HB 11197) which said body had considered and
deliberated on in detail, reconciled or harmonized with SB 1630, and used as basis for drawing up the amended
version eventually reported out and submitted to both houses of Congress.
It is further contended that the BCC was created and convoked prematurely, that SB 1630 should first have been sent
to the House of Representatives for concurrence It is maintained, in other words, that the latter chamber should have
refused the Senate request for a bicameral conference committee to reconcile the "disagreeing provisions" of both
bills, and should have required that SB 1630 be first transmitted to it. This, seemingly, is nit-picking given the urgency
of the proposed legislation as certified by the President (to both houses, in fact). Time was of the essence, according to
the President's best judgment — as regards which absolutely no one in either chamber of Congress took exception,
general acceptance being on the contrary otherwise manifested — and that judgment the Court will not now question.
In light of that urgency, what was so vital or indispensable about such a transmittal that its absence would invalidate
all else that had been done towards enactment of the law, completely escapes me, specially considering that the House
had immediately acceded without demur to the request for convocation of the conference committee.
What has just been said should dispose of the argument that the statement in the enrolled bill, that "This Act which is
a consolidation of House Bill No. 11197 and Senate Bill No. 11630 was finally passed by the House of
Representatives and the Senate on April 27, 1994 and May 2, 1994," necessarily signifies that there were two (2) bills
separately introduced, retaining their independent existence until they reached the bicameral conference committee
where they were consolidated, and therefore, the VAT law did not originate exclusively in the House having originated
in part in the Senate as SB 1630, which bill was not embodied in but merely merged with HB 11197, retaining its
separate identity until it was joined by the BCC with the house measure. The more logical, and fairer, course is to
construe the expression, "consolidation of House Bill No. 11197 and Senate Bill No. 11630" in the context of
accompanying and contemporaneous statements, i.e.: (a) the declaration in the BCC Report, supra, that the committee
met to reconcile the disagreeing provisions of the two bills, "and after full and free conference" on the matter, agreed
and so recommended that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in
accordance with the attached copy of the bill as reconciled and approved by the conferees;" and (b) the averment of
Senator Herrera, in the Report of the Ways and Means Committee, supra, that the committee had actually
"considered" (discussed) HB No. 11197 and taken it "into consideration" in recommending that its own version of the
measure (SB 1630) be the one approved.
That the Senate might have drawn up its own version of the expanded VAT bill, contemporaneously with or even
before the House did, is of no moment. It bears repeating in this connection that no VAT bill ever originated in the
Senate; neither its SB 1129 or SB 1630 or any of its drafts was ever officially transmitted to the House as an initiating
bill which, as already pointed out, is what the Constitution forbids; it was HB 11197 that was first sent to the Senate,
underwent first reading, was referred to Committee on Ways and Means and there discussed in relation to and in
comparison with the counterpart Senate version or versions — the mere formulation of which was, as also already
discussed, not prohibited to it — and afterwards considered by the Senate itself, also in connection with SB 1630, on
second and third readings. HB 11197 was in the truest sense, the originating bill.
An issue has also arisen respecting the so-called "enrolled bill doctrine" which, it is said, whatever sacrosanct status it
might originally have enjoyed, is now in bad odor with modern scholars on account of its imputed rigidity and
unrealism; it being also submitted that the ruling in Mabanag v. Lopez Vito (78 Phil. 1) and the cases reaffirming it, is
no longer good law, it being based on a provision of the Code of Civil Procedure 3 long since stricken from the statute
books.
I would myself consider the "enrolled bill" theory as laying down a presumption of so strong a character as to be well
nigh absolute or conclusive, fully in accord with the familiar and fundamental philosophy of separation of powers.
The result, as far as I am concerned, is to make discussion of the enrolled bill principle purely academic; for as
already pointed out, there is no proof worthy of the name of any facts to justify its reexamination and, possibly,
disregard.
The other question is, what is the nature of the power given to a bicameral conference committee of reconciling
differences between, or "disagreeing provisions" in, a bill originating from the House in relation to amendments
proposed by the Senate — whether as regards some or all of its provisions? Is the mode of reconciliation, subject to
fixed procedure and guidelines? What exactly can the committee do, or not do? Can it only clarify or revise provisions
found in either Senate or House bill? Is it forbidden to propose additional or new provisions, even on matters
necessarily or reasonably connected with or germane to items in the bills being reconciled?
In answer, it is postulated that the reconciliation function is quite limited. In these cases, the conference committee
should have confined itself to reconciliation of differences or inconsistencies only by (a) restoring provisions of
HB11197 aliminated by SB 1630, or (b) sustaining wholly or partly the Senate amendments, or (c) as a compromise,
agreeing that neither provisions nor amendments be carried into the final form of HB 11197 for submission to both
chambers of the legislature.
The trouble is, it is theorized, the committee incorporated activities or transactions which were not within the
contemplation of both bills; it made additions and deletions which did not enjoy the enlightenment of initial
committee studies; it exercised what is known as an "ex post veto power" granted to it by no law, rule or regulation, a
power that in truth is denied to it by the rules of both the Senate and the House. In substantiation, the Senate rule is
cited, similar to that of the House, providing that "differences shall be settled by a conference committee" whose
report shall contain "detailed and sufficiently explicit statement of the changes in or amendments to the subject
measure, ** (to be) signed by the conferees;" as well as the "Jefferson's Manual," adopted by the Senate as
supplement to its own rules, directing that the managers of the conference must confine themselves to differences
submitted to them; they may not include subjects not within the disagreements even though germane to a question in
issue."
It is significant that the limiting proviso in the relevant rules has been construed and applied as directory, not
mandatory. During the oral argument, counsel for petitioners admitted that the practice for decades has been for
bicameral conference committees to include such provisions in the reconciled bill as they believed to be germane or
necessary and acceptable to both chambers, even if not within any of the "disagreeing provisions," and the reconciled
bills, containing such provisions had invariably been approved and adopted by both houses of Congress. It is a
practice, they say, that should be stopped. But it is a practice that establishes in no uncertain manner the prevailing
concept in both houses of Congress of the permissible and acceptable modes of reconciliation that their conference
committees may adopt, one whose undesirability is not all that patent if not, indeed, incapable of unquestionable
demonstration. The fact is that conference committees only take up bills which have already been freely and fully
discussed in both chambers of the legislature, but as to which there is need of reconciliation in view of "disagreeing
provisions" between them; and both chambers entrust the function of reconciling the bills to their delegates at a
conference committee with full awareness, and tacit consent, that conformably with established practice
unquestioningly observed over many years, new provisions may be included even if not within the "disagreeing
provisions" but of which, together with other changes, they will be given detailed and sufficiently explicit information
prior to voting on the conference committee version.
In any event, a fairly recent decision written for the Court by Senior Associate Justice Isagani A. Cruz, promulgated
on November 11, 1993 (G.R. No. 105371, The Philippine Judges Association, etc., et al. v. Hon. Pete Prado, etc., et
al.), should leave no doubt of the continuing vitality of the enrolled bill doctrine and give an insight into the nature of
the reconciling function of bicameral conference committees. In that case, a bilateral conference committee was
constituted and met to reconcile Senate Bill No. 720 and House Bill No. 4200. It adopted a "reconciled" measure that
was submitted to and approved by both chambers of Congress and ultimately signed into law by the President, as R.A.
No. 7354. A provision in this statute (removing the franking privilege from the courts, among others) was assailed as
being an invalid amendment because it was not included in the original version of either the senate or the house bill
and hence had generated no disagreement between them which had to be reconciled. The Court held:
While it is true that a conference committee is the mechanism for compromising differences between
the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is
described thus:
A conference committee may deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where the
conference committee is not by rule limited in its jurisdiction, legislative custom
severely limits the freedom with which new subject matter can be inserted into the
conference bill. But occasionally a conference committee produces unexpected
 results, results beyond its mandate. These excursions occur even where the rules
impose strict limitations on conference committee jurisdiction. This is symptomatic
of the authoritarian power of conference committee (Davies, Legislative Law and
Process: In A Nutshell, 1987 Ed., p. 81).
It is a matter of record that the Conference Committee Report on the bill in question was returned to
and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was
enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra
of the House of Representatives as having been duly passed by both Houses of Congress. It was then
presented to and approved by President Corazon C. Aquino on April 3, 1992.
Under the doctrine of separation of powers, the Court may not inquire beyond the certification of the
approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v.
Gimenez(7 SCRA 347) laid down the rule that the enrolled bill is conclusive upon the Judiciary
(except in matters that have to be entered in the journals like the yeas and nays on the final reading of
the bill) (Mabanag v. Lopez Vito, 78 Phil. 1). The journals are themselves also binding on the
Supreme Court, as we held in the old (but still valid) case of U.S. v. Pons (34 Phil. 729), where we
explained the reason thus:
To inquire into the veracity of the journals of the Philippine legislature when they
are, as we have said, clear and explicit, would be to violate both the letter and spirit
of the organic laws by which the Philippine Government was brought into existence,
to invade a coordinate and independent department of the Government, and to
interfere with the legitimate powers and functions of the Legislature. Applying these
principles, we shall decline to look into the petitioners' charges that an amendment
was made upon the last reading of the bill that eventually R.A. No. 7354 and that
copies thereof in its final form were not distributed among the members of each
House. Both the enrolled bill and the legislative journals certify that the measure
was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution.
We are bound by such official assurances from a coordinate department of the
government, to which we owe, at the very least, a becoming courtesy.
Withal, an analysis of the changes made by the conference committee in HB 11197 and SB 1630 by way of
reconciling their "disagreeing provisions," — assailed by petitioners as unauthorized or incongrouous — reveals that
many of the changes related to actual "disagreeing provisions," and that those that might perhaps be considered as
entirely new are nevertheless necessarily or logically connected with or germane to particular matters in the bills
being reconciled.
For instance, the change made by the bicameral conference committee (BCC) concerning amendments to Section 99
of the National Internal Revenue Code (NIRC) — the addition of "lessors of goods or properties and importers of
goods" — is really a reconciliation of disagreeing provisions, for while HB 11197 mentions as among those subject to
tax, "one who sells, barters, or exchanges goods or properties and any person who leases personal properties," SB
1630 does not. The change also merely clarifies the provision by providing that the contemplated taxpayers includes
"importers." The revision as regards the amendment to Section 100, NIRC, is also simple reconciliation, being nothing
more than the adoption by the BCC of the provision in HB 11197 governing the sale of gold to Bangko Sentral, in
contrast to SB 1630 containing no such provision. Similarly, only simple reconciliation was involved as regards
approval by the BCC of a provision declaring as not exempt, the sale of real properties primarily held for sale to
customers or held for lease in the ordinary course of trade or business, which provision is found in HB 11197 but not
in SB 1630; as regards the adoption by the BCC of a provision on life insurance business, contained in SB 1630 but
not found in HB 11197; as regards adoption by the BCC of the provision in SB 1630 for deferment of tax on certain
goods and services for no longer than 3 years, as to which there was no counterpart provision in SB 11197; and as
regards the fixing of a period for the adoption of implementing rules, a period being prescribed in SB 1630 and none
in HB 11197.
In respect of other revisions, it would seem that questions logically arose in the course of the discussion of specific
"disagreeing provisions" to which answers were given which, because believed acceptable to both houses of
Congress, were placed in the BCC draft. For example, during consideration of radio and television time (Sec. 100,
NIRC) dealt with in both House and Senate bills, the question apparently came up, the relevance of which is apparent
on its face, relative to satellite transmission and cable television time. Hence, a provision in the BCC bill on the
matter. Again, while deliberating on the definition of goods or properties in relation to the provision subjecting sales
thereof to tax, a question apparently arose, logically relevant, about real properties intended to be sold by a person in
economic difficulties, or because he wishes to buy a car, i.e., not as part of a business, the BCC evidently resolved to
clarify the matter by excluding from the tax, "real properties held primarily for sale to customers or held for lease in
the ordinary course of business." And in the course of consideration of the term,sale or exchange of services (Sec 102,
NIRC), the inquiry most probably was posed as to whether the term should be understood as including other services:
e.g., services of lessors of property whether real or personal, of warehousemen, of keepers of resthouses, pension
houses, inns, resorts, or of common carriers, etc., and presumably the BCC resolved to clarify the matter by including
the services just mentioned. Surely, changes of this nature are obviously to be expected in proceedings before
bicameral conference committees and may even be considered grist for their mill, given the history of such BCCs and
their general practice here and abroad
In any case, all the changes and revisions, and deletions, made by the conference committee were all subsequently
considered by and approved by both the Senate and the House, meeting and voting separately. It is an unacceptable
theorization, to repeat, that when the BCC report and its proposed bill were submitted to the Senate and the House, the
members thereof did not bother to read, or what is worse, having read did not understand, what was before them, or
did not realize that there were new provisions in the reconciled version unrelated to any "disagreeing provisions," or
that said new provisions or revisions were effectively concealed from them
Moreover, it certainly was entirely within the power and prerogative of either legislative chamber to reject the BCC
bill and require the organization of a new bicameral conference committee. That this option was not exercised by
either house only proves that the BCC measure was found to be acceptable as in fact it was approved and adopted by
both chambers.
I vote to DISMISS the petitions for lack of merit.

PADILLA, J.:
I
The original VAT law and the expanded VAT law
In Kapatiran v. Tan,1 where the ponente was the writer of this Separate Opinion, a unanimous Supreme Court en
banc upheld the validity of the original VAT law (Executive Order No. 273, approved on 25 July 1987). It will, in my
view, be pointless at this time to re-open arguments advanced in said case as to why said VAT law was invalid, and it
will be equally redundant to re-state the principles laid down by the Court in the same case affirming the validity of
the VAT law as a tax measure. And yet, the same arguments are, in effect, marshalled against the merits and substance
of the expanded VAT law (Rep. Act. No. 7716, approved on 5 May 1994). The same Supreme Court decision should
therefore dispose, in the main, of such arguments, for the expanded VAT law is predicated basically on the same
principles as the original VAT law, except that now the tax base of the VAT imposition has been expanded or
broadened.
It only needs to be stated — what actually should be obvious — that a tax measure, like the expanded VAT law
(Republic Act. No. 7716), is enacted by Congress and approved by the President in the exercise of the State's power to
tax, which is an attribute of sovereignty. And while the power to tax, if exercised without limit, is a power to destroy,
and should, therefore, not be allowed in such form, it has to be equally recognized that the power to tax is an essential
right of government. Without taxes, basic services to the people can come to a halt; economic progress will be stunted,
and, in the long run, the people will suffer the pains of stagnation and retrogression.
Consequently, upon careful deliberation, I have no difficulty in reaching the conclusion that the expanded VAT law
comes within the legitimate power of the state to tax. And as I had occasion to previously state:
Constitutional Law, to begin with, is concerned with power not political convenience, wisdom,
exigency, or even necessity. Neither the Executive nor the legislative (Commission on Appointments)
can create power where the Constitution confers none.2
Likewise, in the first VAT case, I said:
In any event, if petitioners seriously believe that the adoption and continued application of the VAT
are prejudicial to the general welfare or the interests of the majority of the people, they should seek,
 recourse and relief from the political branches of the government. The Court, following the time-
honored doctrine of separation of powers, cannot substitute its judgment for that of the President (and
Congress) as to the wisdom, justice and advisability of the adoption of the VAT. 3
This Court should not, as a rule, concern itself with questions of policy, much less, economic policy. That is better left
to the two (2) political branches of government. That the expanded VAT law is unwise, unpopular and even anti-poor,
among other things said against it, are arguments and considerations within the realm of policy-debate, which only
Congress and the Executive have the authority to decisively confront, alleviate, remedy and resolve.
II
The procedure followed in the approval of Rep. Act No. 7716
Petitioners however posit that the present case raises a far-reaching constitutional question which the Court is duty-
bound to decide under its expanded jurisdiction in the 1987 Constitution.4 Petitioners more specifically question and
impugn the manner by which the expanded VAT law (Rep. Act. No. 7716) was approved by Congress. They contend
that it was approved in violation of the Constitution from which fact it follows, as a consequence, that the law is null
and void. Main reliance of the petitioners in their assault in Section 24, Art. VI of the Constitution which provides:
Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bill of
local application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
While it should be admitted at the outset that there was no rigorous and strict adherence to the literal command of the
above provision, it may however be said, after careful reflection, that there was substantial compliance with the
provision.
There is no question that House Bill No. 11197 expanding the VAT law originated from the House of Representatives.
It is undeniably a House measure. On the other hand, Senate Bill No. 1129, also expanding the VAT law, originated
from the Senate. It is undeniably a Senate measure which, in point of time, actually antedated House Bill No. 11197.
But it is of record that when House Bill No. 11197 was, after approval by the House, sent to the Senate, it was referred
to, and considered by the Senate Committee on Ways and Means (after first reading) together with Senate Bill No.
1129, and the Committee came out with Senate Bill No. 1630 in substitution of Senate Bill No. 1129 but after
expressly taking into consideration House Bill No. 11197.
Since the Senate is, under the above-quoted constitutional provision, empowered to concur with a revenue measure
exclusively originating from the House, or to propose amendments thereto, to the extent of proposing amendments by
SUBSTITUTION to the House measure, the approval by the Senate of Senate Bill No. 1630, after it had considered
House Bill No. 11197, may be taken, in my view, as an AMENDMENT BY SUBSTITUTION by the Senate not only
of Senate Bill No. 1129 but of House Bill No. 11197 as well which, it must be remembered, originated exclusively
from the House.
But then, in recognition of the fact that House Bill No. 11197 which originated exclusively from the House and Senate
Bill No. 1630 contained conflicting provisions, both bills (House Bill No. 11197 and Senate Bill No. 1630) were
referred to the Bicameral Conference Committee for joint consideration with a view to reconciling their conflicting
provisions.
The Conference Committee came out eventually with a Conference Committee Bill which was submitted to both
chambers of Congress (the Senate and the House). The Conference Committee reported out a bill consolidating
provisions in House Bill No. 11197 and Senate Bill No. 1630. What transpired in both chambers after the Conference
Committee Report was submitted to them is not clear from the records in this case. What is clear however is that both
chambers voted separately on the bill reported out by the Conference Committee and both chambers approved the bill
of the Conference Committee.
To me then, what should really be important is that both chambers of Congress approved the bill reported out by the
Conference Committee. In my considered view, the act of both chambers of Congress in approving the Conference
Committee bill, should put an end to any inquiry by this Court as to how the bill came about. What is more, such
separate approvals CURED whatever constitutional infirmities may have arisen in the procedures leading to such
approvals. For, if such infirmities were serious enough to impugn the very validity of the measure itself, there would
have been an objection or objections from members of both chambers to the approval. The Court has been shown no
such objection on record in both chambers.
Petitioners contend that there were violations of Sec. 26 paragraph 2, Article VI of the Constitution which provides:
Sec. 26. . . .
(2) No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be
allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in
the Journal.
in that, when Senate Bill No. 1630 (the Senate counterpart of House Bill No. 11197) was approved by the Senate, after
it had been reported out by the Senate Committee on Ways and Means, the bill went through second and third readings
on the same day (not separate days) and printed copies thereof in its final form were not distributed to the members of
the Senate at least three (3) days before its passage by the Senate. But we are told by the respondents that the reason
for this "short cut" was that the President had certified to the necessity of the bill's immediate enactment to meet an
emergency — a certification that, by leave of the same constitutional provision, dispensed with the second and third
readings on separate days and the printed form at least three (3) days before its passage.
We have here then a situation where the President did certify to the necessity of Senate Bill No. 1630's immediate
enactment to meet an emergency and the Senate responded accordingly. While I would be the last to say that this
Court cannot review the exercise of such power by the President in appropriate cases ripe for judicial review, I am not
prepared however to say that the President gravely abused his discretion in the exercise of such power as to require
that this Court overturn his action. We have been shown no fact or circumstance which would impugn the judgment of
the President, concurred in by the Senate, that there was an emergency that required the immediate enactment of
Senate Bill No. 1630. On the other hand, a becoming respect for a co-equal and coordinate department of government
points that weight and credibility be given to such Presidential judgment.
The authority or power of the Conference Committee to make insertions in and deletions from the bills referred to it,
namely, House Bill No. 11197 and Senate Bill No. 1630 is likewise assailed by petitioners. Again, what appears
important here is that both chambers approved and ratified the bill as reported out by the Conference Committee (with
the reported insertions and deletions). This is perhaps attributable to the known legislative practice of allowing a
Conference Committee to make insertions in and deletions from bills referred to it for consideration, as long as they
are germane to the subject matter of the bills under consideration. Besides, when the Conference Committee made the
insertions and deletions complained of by petitioners, was it not actually performing the task assigned to it of
reconciling conflicting provisions in House Bill No. 11197 and Senate Bill No. 1630?
This Court impliedly if not expressly recognized the fact of such legislative practice in Philippine Judges Association,
etc. vs. Hon. Peter Prado, etc., 5 In said case, we stated thus:
The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that
amendment to any bill when the House and the Senate shall have differences thereon may be settled
by a conference committee of both chambers. They stress that Sec. 35 was never a subject of any
disagreement between both Houses and so the second paragraph could not have been validly added as
an amendment.
These arguments are unacceptable.
While it is true that a conference committee is the mechanism for compromising differences between
the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is
described thus:
A conference committee may deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where the
conference committee is not by rule limited in its jurisdiction, legislative custom
severely limits the freedom with which new subject matter can be inserted into the
conference bill. But occasionally a conference committee produces unexpected
results, results beyond its mandate. These excursions occurs even where the rules
impose strict limitations on conference committee jurisdiction. This is symptomatic
of the authoritarian power of conference committee (Davies, Legislative Law and
Process: In A Nutshell, 1986 Ed., p. 81).
 It is a matter of record that the Conference Committee Report on the bill in question was returned to
and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was
enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra
of the House of Representatives as having been duly passed by both Houses of Congress. It was then
presented to and approved by President Corazon C. Aquino on April 3, 1992.
It would seem that if corrective measures are in order to clip the powers of the Conference Committee, the remedy
should come from either or both chambers of Congress, not from this Court, under the time-honored doctrine of
separation of powers.
Finally, as certified by the Secretary of the Senate and the Secretary General of the House of Representatives —
This Act (Rep. Act No. 7716) is a consolidation of House Bill No. 11197 and Senate Bill No. 1630
(w)as finally passed by the House of Representatives and the Senate on April 27, 1994 and May 2,
1994 respectively.
Under the long-accepted doctrine of the "enrolled bill," the Court in deference to a co-equal and coordinate branch of
government is held to a recognition of Rep. Act No. 7716 as a law validly enacted by Congress and, thereafter,
approved by the President on 5 May 1994. Again, we quote from out recent decision in Philippine Judges Association,
supra:
Under the doctrine of separation of powers, the Court may not inquire beyond the certification of the
approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v.
Gimenezlaid down the rule that the enrolled bill is conclusive upon the Judiciary (except in matters
that have to be entered in the journals like the yeas and nays on the finally reading of the bill). The
journals are themselves also binding on the Supreme Court, as we held in the old (but still valid) case
of U.S. vs. Pons,8 where we explained the reason thus:
To inquire into the veracity of the journals of the Philippine legislature when they
are, as we have said, clear and explicit, would be to violate both the letter and spirit
of the organic laws by which the Philippine Government was brought into existence,
to invade a coordinate and independent department of the Government, and to
interfere with the legitimate powers and functions of the Legislature.
Applying these principles, we shall decline to look into the petitioners' charges that an amendment
was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies
thereof in its final form were not distributed among the members of each House. Both the enrolled
bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with
Article VI, Sec. 26(2) of the Constitution. We are bound by such official assurances from a
coordinate department of the government, to which we owe, at the very least, a becoming courtesy.
III
Press Freedom and Religious Freedom and Rep. Act No. 7716
The validity of the passage of Rep. Act No. 7716 notwithstanding, certain provisions of the law have to be examined
separately and carefully.
Rep. Act. No. 7716 in imposing a value-added tax on circulation income of newspapers and similar publications and
on income derived from publishing advertisements in newspapers 9, to my mind, violates Sec. 4, Art. III of the
Constitution. Indeed, even the Executive Department has tried to cure this defect by the issuance of the BIR
Regulation No. 11-94 precluding implementation of the tax in this area. It should be clear, however, that the BIR
regulation cannot amend the law (Rep. Act No. 7716). Only legislation (as distinguished from administration
regulation) can amend an existing law.
Freedom of the press was virtually unknown in the Philippines before 1900. In fact, a prime cause of the revolution
against Spain at the turn of the 19th century was the repression of the freedom of speech and expression and of the
press. No less than our national hero, Dr. Jose P. Rizal, in "Filipinas Despues de Cien Anos" (The Philippines a
Century Hence) describing the reforms sine quibus non which the Filipinos were insisting upon, stated: "The minister
. . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free . . . ". 10
Press freedom in the Philippines has met repressions, most notable of which was the closure of almost all forms of
existing mass media upon the imposition of martial law on 21 September 1972.
Section 4, Art. III of the Constitution maybe traced to the United States Federal Constitution. The guarantee of
freedom of expression was planted in the Philippines by President McKinley in the Magna Carta of Philippine Liberty,
Instructions to the Second Philippine Commission on 7 April 1900.
The present constitutional provision which reads:
Sec. 4 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.
is essentially the same as that guaranteed in the U.S. Federal Constitution, for which reason, American case law giving
judicial expression as to its meaning is highly persuasive in the Philippines.
The plain words of the provision reveal the clear intention that no prior restraint can be imposed on the exercise of
free speech and expression if they are to remain effective and meaningful.
The U.S. Supreme Court in the leading case of Grosjean v. American Press Co. Inc.11 declared a statute imposing a
gross receipts license tax of 2% on circulation and advertising income of newspaper publishers as constituting a prior
restraint which is contrary to the guarantee of freedom of the press.
In Bantam Books, Inc. v. Sullivan 12, the U.S. Supreme Court stated: "Any system of prior restraint of expression
comes to this Court bearing a heavy presumption against its constitutionality."
In this jurisdiction, prior restraint on the exercise of free expression can be justified only on the ground that there is a
clear and present danger of a substantive evil which the State has the right to prevent 13.
In the present case, the tax imposed on circulation and advertising income of newspaper publishers is in the nature of
a prior restraint on circulation and free expression and, absent a clear showing that the requisite for prior restraint is
present, the constitutional flaw in the law is at once apparent and should not be allowed to proliferate.
Similarly, the imposition of the VAT on the sale and distribution of religious articles must be struck down for being
contrary to Sec. 5, Art. III of the Constitution which provides:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
That such a tax on the sale and distribution of religious articles is unconstitutional, has been long settled in American
Bible Society, supra.
Insofar, therefore, as Rep. Act No. 7716 imposes a value-added tax on the exercise of the above- discussed two (2)
basic constitutional rights, Rep. Act No. 7716 should be declared unconstitutional and of no legal force and effect.
IV
Petitions of CREBA and PAL and Rep. Act No. 7716
The Chamber of Real Estate and Builder's Association, Inc. (CREBA) filed its own petition (GR No. 11574) arguing
that the provisions of Rep. Act No. 7716 imposing a 10% value-added tax on the gross selling price or gross value in
money of every sale, barter or exchange of goods or properties (Section 2) and a 10% value-added tax on gross
receipts derived from the sale or exchange of services, including the use or lease of properties (Section 3), violate the
equal protection, due process and non-impairment provisions of the Constitution as well as the rule that taxation
should be uniform, equitable and progressive.
The issue of whether or not the value-added tax is uniform, equitable and progressive has been settled inKapatiran.
CREBA which specifically assails the 10% value-added tax on the gross selling price of real properties, fails to
distinguish between a sale of real properties primarily held for sale to customers or held for lease in the ordinary
course of trade or business and isolated sales by individual real property owners (Sec. 103[s]). That those engaged in
the business of real estate development realize great profits is of common knowledge and need not be discussed at
length here. The qualification in the law that the 10% VAT covers only sales of real property primarily held for sale to
customers, i.e. for trade or business thus takes into consideration a taxpayer's capacity to pay. There is no showing that
the consequent distinction in real estate sales is arbitrary and in violation of the equal protection clause of the
Constitution. The inherent power to tax of the State, which is vested in the legislature, includes the power to determine
whom or what to tax, as well as how much to tax. In the absence of a clear showing that the tax violates the due
process and equal protection clauses of the Constitution, this Court, in keeping with the doctrine of separation of
powers, has to defer to the discretion and judgment of Congress on this point.
Philippine Airlines (PAL) in a separate petition (G.R. No. 115852) claims that its franchise under PD No. 1590 which
makes it liable for a franchise tax of only 2% of gross revenues "in lieu of all the other fees and charges of any kind,
nature or description, imposed, levied, established, assessed or collected by any municipal, city, provincial, or national
authority or government agency, now or in the future," cannot be amended by Rep. Act No. 7716 as to make it (PAL)
liable for a 10% value-added tax on revenues, because Sec. 24 of PD No. 1590 provides that PAL's franchise can only
be amended, modified or repealed by a special law specifically for that purpose.
The validity of PAL's above argument can be tested by ascertaining the true intention of Congress in enacting Rep.
Act No. 7716. Sec. 4 thereof dealing with Exempt Transactions states:
Sec. 103. Exempt Transactions. — The following shall be exempt from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws, except those granted under Presidential
Decrees No. 66, 529, 972, 1491,
1590, . . . " (Emphasis supplied)
The repealing clause of Rep. Act No. 7716 further reads:
Sec. 20. Repealing clauses. — The provisions of any special law relative to the rate of franchise taxes
are hereby expressly repealed.
xxx xxx xxx
All other laws, orders, issuances, rules and regulations or parts thereof inconsistent with this Act are
hereby repealed, amended or modified accordingly (Emphasis supplied)
There can be no dispute, in my mind, that the clear intent of Congress was to modify PAL's franchise with respect to
the taxes it has to pay. To this extent, Rep. Act No. 7716 can be considered as a special law amending PAL's franchise
and its tax liability thereunder. That Rep. Act. No. 7716 imposes the value-added taxes on other subjects does not
make it a general law which cannot amend PD No. 1590.
To sum up: it is my considered view that Rep. Act No. 7716 (the expanded value-added tax) is a valid law, viewed
from both substantive and procedural standards, except only insofar as it violates Secs. 4 and 5, Art. III of the
Constitution (the guarantees of freedom of expression and the free exercise of religion). To that extent, it is, in its
present form, unconstitutional.
I, therefore, vote to DISMISS the petitions, subject to the above qualification.

VITUG, J.:
Lest we be lost by a quagmire of trifles, the real threshold and prejudicial issue, to my mind, is whether or not this
Court is ready to assume and to take upon itself with an overriding authority the awesome responsibility of overseeing
the entire bureaucracy. Far from it, ours is merely to construe and to apply the law regardless of its wisdom and
salutariness, and to strike it down only when it clearly disregards constitutional proscriptions. It is what the
fundamental law mandates, and it is what the Court must do.
I cannot yet concede to the novel theory, so challengingly provocative as it might be, that under the 1987 Constitution
the Court may now at good liberty intrude, in the guise of the people's imprimatur, into every affair of the government.
What significance can still then remain, I ask, of the time honored and widely acclaimed principle of separation of
powers, if at every turn the Court allows itself to pass upon, at will, the disposition of a co-equal, independent and
coordinate branch in our system of government. I dread to think of the so varied uncertainties that such an undue
interference can lead to. The respect for long standing doctrines in our jurisprudence, nourished through time, is one
of maturity not timidity, of stability rather than quiescence.
It has never occurred to me, and neither do I believe it has been intended, that judicial tyranny is envisioned, let alone
institutionalized, by our people in the 1987 Constitution. The test of tyranny is not solely on how it is wielded but on
how, in the first place, it can be capable of being exercised. It is time that any such perception of judicial omnipotence
is corrected.
Against all that has been said, I see, in actuality in these cases at bench, neither a constitutional infringement of
substance, judging from precedents already laid down by this Court in previous cases, nor a justiciability even now of
the issues raised, more than an attempt to sadly highlight the perceived shortcomings in the procedural enactment of
laws, a matter which is internal to Congress and an area that is best left to its own basic concern. The fact of the matter
is that the legislative enactment, in its final form, has received the ultimate approval of both houses of Congress. The
finest rhetoric, indeed fashionable in the early part of this closing century, would still be a poor substitute for
tangibility. I join, nonetheless, some of my colleagues in respectfully inviting the kind attention of the honorable
members of our Congress in the suggested circumspect observance of their own rules.
A final remark. I should like to make it clear that this opinion does not necessarily foreclose the right, peculiar to any
taxpayer adversely affected, to pursue at the proper time, in appropriate proceedings, and in proper fora, the specific
remedies prescribed therefor by the National Internal Revenue Code, Republic Act 1125, and other laws, as well as
rules of procedure, such as may be pertinent. Some petitions filed with this Court are, in essence, although styled
differently, in the nature of declaratory relief over which this Court is bereft of original jurisdiction.
All considered, I, therefore, join my colleagues who are voting for the dismissal of the petitions.

CRUZ, J.:
It is a curious and almost incredible fact that at the hearing of these cases on July 7, 1994, the lawyers who argued for
the petitioners — two of them former presidents of the Senate and the third also a member of that body — all asked
this Court to look into the internal operations of their Chamber and correct the irregularities they claimed had been
committed there as well as in the House of Representatives and in the bicameral conference committee.
While a member of the legislative would normally resist such intervention and invoke the doctrine of separation of
powers to protect Congress from what he would call judicial intrusion, these counsel practically implored the Court to
examine the questioned proceedings and to this end go beyond the journals of each House, scrutinize the minutes of
the committee, and investigate all other matters relating to the passage of the bill (or bills) that eventually became
R.A. No. 7716.
In effect, the petitioners would have us disregard the time-honored inhibitions laid down by the Court upon itself in
the landmark case of U.S. v. Pons (34 Phil. 725), where it refused to consider extraneous evidence to disprove the
recitals in the journals of the Philippine Legislature that it had adjourned sine die at midnight of February 28, 1914.
Although it was generally known then that the special session had actually exceeded the deadline fixed by the
Governor-General in his proclamation, the Court chose to be guided solely by the legislative journals, holding
significantly as follows:
. . . From their very nature and object, the records of the legislature are as important as those of the
judiciary, and to inquire into the veracity of the journals of the Philippine Legislature, when they are,
as we have said, clear and explicit, would be to violate both the letter and the spirit of the organic
laws by which the Philippine Government was brought into existence, to invade a coordinate and
independent department of the Government, and to interfere with the legitimate powers and functions
of the Legislature. But counsel in his argument says that the public knows that the Assembly's clock
was stopped on February 28, 1914, at midnight and left so until the determination of the discussion of
all pending matters. Or, in other words, the hands of the clock were stayed in order to enable the
Assembly to effect an adjournment apparently within the fixed time by the Governor's proclamation
for the expiration of the special session, in direct violation of the Act of Congress of July 1, 1902. If
the clock was, in fact, stopped, as here suggested, "the resultant evil might be slight as compared with
that of altering the probative force and character of legislative records, and making the proof of
legislative action depend upon uncertain oral evidence, liable to loss by death or absence, and so
imperfect on account of the treachery of memory.
. . . The journals say that the Legislature adjourned at 12 midnight on February 28, 1914. This settles
the question, and the court did not err in declining to go beyond the journals.
As one who has always respected the rationale of the separation of powers, I realize only too well the serious
implications of the relaxation of the doctrine except only for the weightiest of reasons. The lowering of the barriers
now dividing the three major branches of the government could lead to individious incursions by one department into
the exclusive domains of the other departments to the detriment of the proper discharge of the functions assigned to
each of them by the Constitution.
Still, while acknowledging the value of tradition and the reasons for judicial non-interference announced in Pons, I am
not disinclined to take a second look at the ruling from a more pragmatic viewpoint and to tear down, if we must, the
iron curtain it has hung, perhaps improvidently, around the proceedings of the legislature.
I am persuaded even now that where a specific procedure is fixed by the Constitution itself, it should not suffice for
Congress to simply say that the rules have been observed and flatly consider the matter closed. It does not have to be
as final as that. I would imagine that the judiciary, and particularly this Court, should be able to verify that statement
and determine for itself, through the exercise of its own powers, if the Constitution has, indeed, been obeyed.
In fact, the Court had already said that the question of whether certain procedural rules have been followed is
justiciable rather than political because what is involved is the legality and not the wisdom of the act in question. So
we ruled in Sanidad v. Commission on Elections (73 SCRA 333) on the amendment of the Constitution; in Daza v.
Singson (180 SCRA 496) on the composition of the Commission on Appointments; and in the earlier case ofTañada v.
Cuenco (100 SCRA 1101) on the organization of the Senate Electoral Tribunal, among several other cases.
By the same token, the ascertainment of whether a bill underwent the obligatory three readings in both Houses of
Congress should not be considered an invasion of the territory of the legislature as this would not involve an inquiry
into its discretion in approving the measure but only the manner in which the measure was enacted.
These views may upset the conservatives among us who are most comfortable when they allow themselves to be
petrified by precedents instead of venturing into uncharted waters. To be sure, there is much to be said of the wisdom
of the past expressed by vanished judges talking to the future. Via trita est tuttisima. Except when there is a need to
revise them because of an altered situation or an emergent idea, precedents should tell us that, indeed, the trodden path
is the safest path.
It could be that the altered situation has arrived to welcome the emergent idea. The jurisdiction of this Court has been
expanded by the Constitution, to possibly include the review the petitioners would have us make of the congressional
proceedings being questioned. Perhaps it is also time to declare that the activities of Congress can no longer be
smoke-screened in the inviolate recitals of its journals to prevent examination of its sacrosanct records in the name of
the separation of powers.
But then again, perhaps all this is not yet necessary at this time and all these observations are but wishful musings for
a more activist judiciary. For I find that this is not even necessary, at least for me, to leave the trodden path in the
search for new adventures in the byways of the law. The answer we seek, as I see it, is not far afield. It seems to me
that it can be found through a study of the enrolled bill alone and that we do not have to go beyond that measure to
ascertain if R.A. No. 7716 has been validly enacted.
It is settled in this jurisdiction that in case of conflict between the enrolled bill and the legislative journals, it is the
former that should prevail except only as to matters that the Constitution requires to be entered in the journals.
(Mabanag v. Lopez Vito, 78 Phil. 1). These are the yeas and nays on the final reading of a bill or on any question at
the request of at least one-fifth of the member of the House (Constitution, Art. VI, Sec. 16[4]), the objections of the
President to a vetoed bill or item (Ibid, Sec. 27 [1]), and the names of the members voting for or against the overriding
of his veto (Id. Section 27 [1]), The original of a bill is not specifically required by the Constitution to be entered in
the journals. Hence, on this particular manner, it is the recitals in the enrolled bill and not in the journals that must
control.
Article VI, Section 24, of the Constitution provides:
Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
The enrolled bill submitted to and later approved by the President of the Philippines as R.A. No. 7716 was signed by
the President of the Senate and the Speaker of the House of Representatives. It carried the following certification over
the signatures of the Secretary of the Senate and the Acting Secretary of the House of Representatives:
 This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 11630 was finally
passed by the House of Representative and the Senate on April 27, 1994, and May 2, 1994.
Let us turn to Webster for the meaning of certain words,
To "originate" is "to bring into being; to create something (original); to invent; to begin; start." The word
"exclusively" means "excluding all others" and is derived from the word "exclusive," meaning "not shared or divided;
sole; single." Applying these meanings, I would read Section 24 as saying that the bills mentioned therein must be
brought into being, or created, or invented, or begun or started, only or singly or by no other body than the house of
Representatives.
According to the certification, R.A. No. 7716 "is a consolidation of House Bill No. 11197 and Senate Bill No. 1630."
Again giving the words used their natural and ordinary sense conformably to an accepted canon of construction, I
would read the word "consolidation" as a "combination or merger" and derived from the word "consolidated,"
meaning "to combine into one; merge; unite."
The two bills were separately introduced in their respective Chambers. Both retained their independent existence until
they reached the bicameral conference committee where they were consolidated. It was this consolidated measure that
was finally passed by Congress and submitted to the President of the Philippines for his approval.
House Bill No. 11197 originated in the House of Representatives but this was not the bill that eventually became R.A.
No. 7716. The measure that was signed into law by President Ramos was the consolidation of that bill and another
bill, viz., Senate Bill No. 1630, which was introduced in the Senate. The resultant enrolled bill thus did not
originate exclusively in the House of Representatives. The enrolled bill itself says that part of it (and it does not matter
to what extent) originated in the Senate.
It would have been different if the only participation of the Senate was in the amendment of the measure that was
originally proposed in the House of Representatives. But this was not the case. The participation of the Senate was not
in proposing or concurring with amendments that would have been incorporated in House Bill No. 11197. Its
participation was in originating its own Senate Bill No. 1630, which was not embodied in but merged with House Bill
No. 11197.
Senate Bill No. 1630 was not even an amendment by substitution, assuming this was permissible. To "substitute"
means "to take the place of; to put or use in place of another." Senate Bill No. 1630 did not, upon its approval replace
(and thus eliminate) House Bill No. 11197. Both bills retained their separate identities until they were joined or united
into what became the enrolled bill and ultimately R.A. No. 7716.
The certification in the enrolled bill says it all. It is clear that R.A. No. 7716 did not originate exclusively in the House
of Representatives.
To go back to my earlier observations, this conclusion does not require the reversal of U.S. vs. Pons and an inquiry by
this Court into the proceedings of the legislature beyond the recitals of its journals. All we need to do is consider the
certification in the enrolled bill and, without entering the precincts of Congress, declare that by this own admission it
has, indeed, not complied with the Constitution.
While this Court respects the prerogatives of the other departments, it will not hesitate to rise to its higher duty to
require from them, if they go astray, full and strict compliance with the fundamental law. Our fidelity to it must be
total. There is no loftier principle in our democracy than the supremacy of the Constitution, to which all must submit.
I vote to invalidate R.A. No. 7716 for violation of Article VI, Sec. 24, of the Constitution.

REGALADO, J.:
It would seem like an inconceivable irony that Republic Act No. 7716 which, so respondents claim, was conceived by
the collective wisdom of a bicameral Congress and crafted with sedulous care by two branches of government should
now be embroiled in challenges to its validity for having been enacted in disregard of mandatory prescriptions of the
Constitution itself. Indeed, such impugnment by petitioners goes beyond merely the procedural flaws in the parturition
of the law. Creating and regulating as it does definite rights to property, but with its own passage having been violative
of explicit provisions of the organic law, even without going into the intrinsic merits of the provisions of Republic Act
No. 7716 its substantive invalidity is pro facto necessarily entailed.
How it was legislated into its present statutory existence is not in serious dispute and need not detain us except for a
recital of some salient and relevant facts. The House of Representatives passed House Bill No. 11197 1 on third
reading on November 17, 1993 and, the following day, It transmitted the same to the Senate for concurrence. On its
part, the Senate approved Senate Bill No. 1630 on second and third readings on March 24, 1994. It is important to
note in this regard that on March 22, 1994, said S.B. No. 1630 had been certified by President Fidel V. Ramos for
immediate enactment to meet a public emergency, that is, a growing budgetary deficit. There was no such certification
for H.B. No. 11197 although it was the initiating revenue bill.
It is, therefore, not only a curious fact but, more importantly, an invalid procedure since that Presidential certification
was erroneously made for and confined to S.B. No. 1630 which was indisputably a tax bill and, under the
Constitution, could not validly originate in the Senate. Whatever is claimed in favor of S.B. No. 1630 under the
blessings of that certification, such as its alleged exemption from the three separate readings requirement, is
accordingly negated and rendered inutile by the inefficacious nature of said certification as it could lawfully have been
issued only for a revenue measure originating exclusively from the lower House. To hold otherwise would be to
validate a Presidential certification of a bill initiated in the Senate despite the Constitutional prohibition against its
originating therefrom.
Equally of serious significance is the fact that S.B. No. 1630 was reported out in Committee Report No. 349 submitted
to the Senate on February 7, 1994 and approved by that body "in substitution of S.B. No. 1129," while merely "taking
into consideration P.S. No. 734 and H.B. No. 11197." 2 S.B. No. 1630, therefore, was never filed in substitution of
either P.S. No. 734 or, more emphatically, of H.B. No. 11197 as these two legislative issuances were merely taken
account of, at the most, as referential bases or materials.
This is not a play on misdirection for, in the first instance, the respondents assure us that H.B. No. 11197 was actually
the sole source of and started the whole legislative process which culminated in Republic Act No. 7716. The
participation of the Senate in enacting S.B. No. 1630 was, it is claimed, justified as it was merely in pursuance of its
power to concur in or propose amendments to H.B. No. 11197. Citing the 83-year old case of Flint vs. Stone Tracy
Co., 3 it is blithely announced that such power to amend includes an amendment by substitution, that is, even the
extent of substituting the entire H.B. No. 11197 by an altogether completely new measure of Senate provenance. Ergo,
so the justification goes, the Senate acted perfectly in accordance with its amending power under Section 24, Article
VI of the Constitution since it merely proposed amendments through a bill allegedly prepared in advance.
This is a mode of argumentation which, by reason of factual inaccuracy and logical implausibility, both astounds and
confounds. For, it is of official record that S.B. No. 1630 was filed, certified and enacted in substitution of S.B. No.
1129 which in itself was likewise in derogation of the Constitutional prohibition against such initiation of a tax bill in
the Senate. In any event, S.B. No. 1630 was neither intended as a bill to be adopted by the Senate nor to be referred to
the bicameral conference committee as a substitute for H.B. No. 11197. These indelible facts appearing in official
documents cannot be erased by any amount of strained convolutions or incredible pretensions that S.B. No. 1630 was
supposedly enacted in anticipation of H.B. No. 11197.
On that score alone, the invocation by the Solicitor General of the hoary concept of amendment by substitution falls
flat on its face. Worse, his concomitant citation of Flint to recover from that prone position only succeeded in turning
the same postulation over, this time supinely flat on its back. As elsewhere noted by some colleagues, which I will just
refer to briefly to avoid duplication, respondents initially sought sanctuary in that doctrine supposedly laid down
in Flint, thus: "It has, in fact, been held that the substitution of an entirely new measure for the one originally proposed
can be supported as a valid amendment." 4 (Emphasis supplied.) During the interpellation by the writer at the oral
argument held in these cases, the attention of the Solicitor General was called to the fact that the amendment
in Flint consisted only of a single item, that its, the substitution of a corporate tax for an inheritance tax proposed in a
general revenue bill; and that the text of the decision therein nowhere contained the supposed doctrines he quoted and
ascribed to the court, as those were merely summations of arguments of counsel therein. It is indeed a source of
disappointment for us, but an admission of desperation on his part, that, instead of making a clarification or a defense
of his contention, the Solicitor General merely reproduced all over again 5 the same quotations as they appeared in his
original consolidated comment, without venturing any explanation or justification.
The aforestated dissemblance, thus unmasked, has further undesirable implications on the contentions advanced by
respondents in their defense. For, even indulging respondents ex gratia argumenti in their pretension that S.B. No.
1630 substituted or replaced H.B. No. 11197, aside from muddling the issue of the true origination of the disputed law,
this would further enmesh respondents in a hopeless contradiction.
In a publication authorized by the Senate and from which the Solicitor General has liberally quoted, it is reported as
an accepted rule therein that "(a)n amendment by substitution when approved takes the place of the principal bill. C.R.
March 19, 1963, p. 943." 6 Stated elsewise, the principal bill is supplanted and goes out of actuality. Applied to the
present situation, and following respondents' submission that H.B. No. 11197 had been substituted or replaced in its
entirety, then in law it had no further existence for purposes of the subsequent stages of legislation except, possibly,
for referential data.
Now, the enrolled bill thereafter submitted to the President of the Philippines, signed by the President of the Senate
and the Speaker of the House of Representatives, carried this solemn certification over the signatures of the respective
secretaries of both chambers: "This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 1630
was finally passed by the House of Representatives and the Senate on April 27, 1994, and May 2, 1994." (Emphasis
mine.) In reliance thereon, the Chief Executive signed the same into law as Republic Act No. 7716.
The confusion to which the writer has already confessed is now compounded by that official text of the aforequoted
certification which speaks, and this cannot be a mere lapsus calami, of two independent and existingbills (one of them
being H.B. No. 11197) which were consolidated to produce the enrolled bill. In parliamentary usage, to consolidate
two bills, is to unite them into one 7 and which, in the case at bar, necessarily assumes that H.B. No. 11197 never
became legally inexistent. But did not the Solicitor General, under the theory of amendment by substitution of the
entire H.B. No. 11197 by S.B. No. 1630, thereby premise the same upon the replacement, hence the total elimination
from the legislative process, of H.B. 11197?
It results, therefore, that to prove compliance with the requirement for the exclusive origination of H.B. No. 11197,
two alternative but inconsistent theories had to be espoused and defended by respondents' counsel. To justify the
introduction and passage of S.B. No. 1630 in the Senate, it was supposedly enacted only as an amendment by
substitution, hence on that theory H.B. No. 11197 had to be considered as displaced and terminated from its role or
existence. Yet, likewise for the same purpose but this time on the theory of origination by consolidation, H.B. No.
11197 had to be resuscitated so it could be united or merged with S.B. No. 1630. This latter alternative theory,
unfortunately, also exacerbates the constitutional defect for then it is an admission of a dual origination of the two tax
bills, each respectively initiated in and coming from the lower and upper chambers of Congress.
Parenthetically, it was also this writer who pointedly brought this baffling situation to the attention of the Solicitor
General during the aforesaid oral argument, to the extent of reading aloud the certification in full. We had hoped
thereby to be clarified on these vital issue in respondents' projected memorandum, but we have not been favored with
an explanation unraveling this delimma. Verily, by passing sub silentio on these intriguing submissions, respondents
have wreaked havoc on both logic and law just to gloss over their non-compliance with the Constitutional mandate for
exclusive origination of a revenue bill. The procedure required therefor, we emphatically add, can be satisfied only by
complete and strict compliance since this is laid down by the Constitution itself and not by a mere statute.
This writer consequently agrees with the clearly tenable proposition of petitioners that when the Senate passed and
approved S.B. No. 1630, had it certified by the Chief Executive, and thereafter caused its consideration by the
bicameral conference committee in total substitution of H.B. No. 11197, it clearly and deliberately violated the
requirements of the Constitution not only in the origination of the bill but in the very enactment of Republic Act No.
7716. Contrarily, the shifting sands of inconsistency in the arguments adduced for respondents betray such lack of
intellectual rectitude as to give the impression of being mere rhetorics in defense of the indefensible.
We are told, however, that by our discoursing on the foregoing issues we are introducing into non-justiciable areas
long declared verboten by such time-honored doctrines as those on political questions, the enrolled bill theory and the
respect due to two co-equal and coordinate branches of Government, all derived from the separation of powers
inherent in republicanism. We appreciate the lectures, but we are not exactly unaware of the teachings inU.S. vs.
Pons, 8 Mabanag, vs. Lopez Vito, 9 Casco Philippine Chemical Co., Inc. vs. Gimenez, etc., et al., 10 Morals vs.
Subido, etc., 11 and Philippine Judges Association, etc., et al. vs. Prado, etc., et al., 12 on the one hand, andTañada, et
al. vs. Cuenco, et al., 13 Sanidad, et al., vs. Commission on Elections, et al., 14 and Daza vs. Singson, et al., 15 on the
other, to know which would be applicable to the present controversy and which should be rejected.
But, first, a positional exordium. The writer of this opinion would be among the first to acknowledge and enjoin not
only courtesy to, but respect for, the official acts of the Executive and Legislative departments, but only so long as the
same are in accordance with or are defensible under the fundamental charter and the statutory law. He would readily
be numbered in the ranks of those who would preach a reasoned sermon on the separation of powers, but with the
qualification that the same are not contained in tripartite compartments separated by empermeable membranes. He
also ascribes to the general validity of American constitutional doctrines as a matter of historical and legal necessity,
but not to the extent of being oblivious to political changes or unmindful of the fallacy of undue generalization arising
from myopic disregard of the factual setting of each particular case.
These ruminations have likewise been articulated and dissected by my colleagues, hence it is felt that the only issue
which must be set aright in this dissenting opinion is the so-called enrolled bill doctrine to which we are urged to cling
with reptilian tenacity. It will be preliminarily noted that the official certification appearing right on the face of
Republic Act No. 7716 would even render unnecessary any further judicial inquiry into the proceedings which
transpired in the two legislative chambers and, on a parody of tricameralism, in the bicameral conference committee.
Moreover, we have the excellent dissertations of some of my colleagues on these matters, but respondents insist en
contra that the congressional proceedings cannot properly be inquired into by this Court. Such objection confirms a
suppressive pattern aimed at sacrificing the rule of law to the fiat of expediency.
Respondents thus emplaced on their battlements the pronouncement of this Court in the aforecited case ofPhilippine
Judges Association vs. Prado. 16 Their reliance thereon falls into the same error committed by their seeking refuge in
the Flint case, ante. which, as has earlier been demonstrated (aside from the quotational misrepresentation), could not
be on par with the factual situation in the present case. Flint, to repeat, involved a mere amendment on a single
legislative item, that is, substituting the proposal therein of an inheritance tax by one on corporate tax. Now, in their
submission based on Philippine Judges Association, respondents studiously avoid mention of the fact that the
questioned insertion referred likewise to a single item, that is, the repeal of the franking privilege thretofore granted to
the judiciary. That both cases cannot be equated with those at bar, considering the multitude of items challenged and
the plethora of constitutional violations involved, is too obvious to belabor. Legal advocacy and judicial adjudication
must have a becoming sense of qualitative proportion, instead of lapsing into the discredited and maligned practice of
yielding blind adherence to precedents.
The writer unqualifiedly affirms his respect for valid official acts of the two branches of government and eschews any
unnecessary intrusion into their operational management and internal affairs. These, without doubt, are matters
traditionally protected by the republican principle of separation of powers. Where, however, there is an overriding
necessity for judicial intervention in light of the pervasive magnitude of the problems presented and the gravity of the
constitutional violations alleged, but this Court cannot perform its constitutional duty expressed in Section 1, Article
VIII of the Constitution unless it makes the inescapable inquiry, then the confluence of such factors should compel an
exception to the rule as an ultimate recourse. The cases now before us present both the inevitable challenge and the
inescapable exigency for judicial review. For the Court to now shirk its bounden duty would not only project it as a
citadel of the timorous and the slothful, but could even undermine its raison d'etre as the highest and ultimate tribunal.
Hence, this dissenting opinion has touched on events behind and which transpired prior to the presentation of the
enrolled bill for approval into law. The details of that law which resulted from the legislative action followed by both
houses of Congress, the substantive validity of whose provisions and the procedural validity of which legislative
process are here challenged as unconstitutional, have been graphically presented by petitioners and admirably
explained in the respective opinions of my brethren. The writer concurs in the conclusions drawn therefrom and
rejects the contention that we have unjustifiably breached the dike of the enrolled bill doctrine.
Even in the land of its source, the so-called conclusive presumption of validity originally attributed to that doctrine
has long been revisited and qualified, if not altogether rejected. On the competency of judicial inquiry, it has been held
that "(u)nder the 'enrolled bill rule' by which an enrolled bill is sole expository of its contents and conclusive evidence
of its existence and valid enactment, it is nevertheless competent for courts to inquire as to what prerequisites are
fixed by the Constitution of which journals of respective houses of Legislature are required to furnish the evidence." 17
In fact, in Gwynn vs. Hardee, etc., et al., 18 the Supreme Court of Florida declared:
(1) While the presumption is that the enrolled bill, as signed by the legislative officers and filed with
the secretary of state, is the bill as it passed, yet this presumption is not conclusive, and when it is
shown from the legislative journals that a bill though engrossed and enrolled, and signed by the
legislative officers, contains provisions that have not passed both houses, such provisions will be held
spurious and not a part of the law. As was said by Mr. Justice Cockrell in the case of Wade vs.
Atlantic Lumber Co., 51 Fla. 628, text 633, 41 So. 72, 73:
This Court is firmly committed to the holding that when the journals speak they
control, and against such proof the enrolled bill is not conclusive.
More enlightening and apropos to the present controversy is the decision promulgated on May 13, 1980 by the
Supreme Court of Kentucky in D & W Auto Supply, et al. vs. Department of Revenue, et al., 19 pertinent exceprts
wherefrom are extensively reproduced hereunder:
. . . In arriving at our decision we must, perforce, reconsider the validity of a long line of decisions of
this court which created and nurtured the so-called "enrolled bill" doctrine.
xxx xxx xxx
[1] Section 46 of the Kentucky Constitution sets out certain procedures that the legislature must
follow before a bill can be considered for final passage. . . . .
xxx xxx xxx
. . . Under the enrolled bill doctrine as it now exists in Kentucky, a court may not look behind such a
bill, enrolled and certified by the appropriate officers, to determine if there are any defects.
xxx xxx xxx
. . . In Lafferty, passage of the law in question violated this provision, yet the bill was properly
enrolled and approved by the governor. In declining to look behind the law to determine the propriety
of its enactment, the court enunciated three reasons for adopting the enrolled bill rule. First, the court
was reluctant to scrutinize the processes of the legislature, an equal branch of government. Second,
reasons of convenience prevailed, which discouraged requiring the legislature to preserve its records
and anticipated considerable complex litigation if the court ruled otherwise. Third, the court
acknowledged the poor record-keeping abilities of the General Assembly and expressed a preference
for accepting the final bill as enrolled, rather than opening up the records of the legislature. . . . .
xxx xxx xxx
Nowhere has the rule been adopted without reason, or as a result of judicial whim. There are four
historical bases for the doctrine. (1) An enrolled bill was a "record" and, as such, was not subject to
attack at common law. (2) Since the legislature is one of the three branches of government, the
courts, being coequal, must indulge in every presumption that legislative acts are valid. (3) When the
rule was originally formulated, record-keeping of the legislatures was so inadequate that a balancing
of equities required that the final act, the enrolled bill, be given efficacy. (4) There were theories of
convenience as expressed by the Kentucky court in Lafferty.
The rule is not unanimous in the several states, however, and it has not been without its critics. From
an examination of cases and treaties, we can summarize the criticisms as follows: (1) Artificial
presumptions, especially conclusive ones, are not favored. (2) Such a rule frequently (as in the
present case) produces results which do not accord with facts or constitutional provisions. (3) The
rule is conducive to fraud, forgery, corruption and other wrongdoings. (4) Modern automatic and
electronic record-keeping devices now used by legislatures remove one of the original reasons for the
rule. (5) The rule disregards the primary obligation of the courts to seek the truth and to provide a
remedy for a wrong committed by any branch of government. In light of these considerations, we are
convinced that the time has come to re-examine the enrolled bill doctrine.
[2] This court is not unmindful of the admonition of the doctrine of stare decisis. The maxim is "Stare
decisis et non quieta movere," which simply suggests that we stand by precedents and not disturb
settled points of law. Yet, this rule is not inflexible, nor is it of such a nature as to require
perpetuation of error or logic. As we stated in Daniel's Adm'r v. Hoofnel, 287 Ky 834, 155 S.W. 2d
469, 471-72 (1941) (citations omitted):
The force of the rule depends upon the nature of the question to be decided and the
extent of the disturbance of rights and practices which a change in the interpretation
of the law or the course of judicial opinions may create. Cogent considerations are
whether there is clear error and urgent reasons "for neither justice nor wisdom
requires a court to go from one doubtful rule to another," and whether or not the
evils of the principle that has been followed will be more injurious than can possibly
result from a change.
Certainly, when a theory supporting a rule of law is not grounded on facts, or upon sound logic, or is unjust, or has
been discredited by actual experience, it should be discarded, and with it the rule it supports.
[3] It is clear to us that the major premise of the Lafferty decision, the poor record-keeping of the
legislature, has disappeared. Modern equipment and technology are the rule in record-keeping by our
General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment,
printing presses, computers, electronic voting machines, and the like remove all doubts and fears as
to the ability of the General Assembly to keep accurate and readily accessible records.
It is also apparent that the "convenience" rule is not appropriate in today's modern and developing
judicial philosophy. The fact that the number and complexity of lawsuits may increase is not
persuasive if one is mindful that the overriding purpose of our judicial system is to discover the truth
and see that justice is done. The existence of difficulties and complexities should not deter this
pursuit and we reject any doctrine or presumption that so provides.
Lastly, we address the premises that the equality of the various branches of government requires that
we shut our eyes to constitutional failings and other errors of our coparceners in government. We
simply do not agree. Section 26 of the Kentucky Constitution provides that any law contrary to the
constitution is "void." The proper exercise of judicial authority requires us to recognize any law
which is unconstitutional and to declare it void. Without belaboring the point, we believe that under
section 228 of the Kentucky Constitution it is our obligation to "support . . . the Constitution of the
commonwealth." We are sworn to see that violations of the constitution — by any person,
corporation, state agency or branch of government — are brought to light and corrected. To
countenance an artificial rule of law that silences our voices when confronted with violations of our
constitution is not acceptable to this court.
We believe that a more reasonable rule is the one which Professor Sutherland describes as the
"extrinsic evidence" rule . . . Under this approach there is a prima facie presumption that an enrolled
bill is valid, but such presumption may be overcome by clear, satisfactory and convincing evidence
establishing that constitutional requirements have not been met.
We therefore overrule Lafferty v. Huffman and all other cases following the so-called enrolled bill
doctrine, to the extent that there is no longer a conclusive presumption that an enrolled bill is valid. . .
. (Emphasis mine.)
Undeniably, the value-added tax system may have its own merits to commend its continued adoption, and the
proposed widening of its base could achieve laudable governmental objectives if properly formulated and
conscientiously implemented. We would like to believe, however, that ours is not only an enlightened democracy
nurtured by a policy of transparency but one where the edicts of the fundamental law are sacrosanct for all, barring
none. While the realization of the lofty ends of this administration should indeed be the devout wish of all, likewise
barring none, it can never be justified by methods which, even if unintended, are suggestive of Machiavellism.
Accordingly, I vote to grant the instant petitions and to invalidate Republic Act No. 7716 for having been enacted in
violation of Section 24, Article VI of the Constitution.

DAVIDE, JR., J.:

The legislative history of R.A. No. 7716, as highlighted in the Consolidated Memorandum for the public respondents
submitted by the Office of the Solicitor General, demonstrates beyond doubt that it was passed in violation or
deliberate disregard of mandatory provisions of the Constitution and of the rules of both chambers of Congress
relating to the enactment of bills.
I therefore vote to strike down R.A. No. 7716 as unconstitutional and as having been enacted with grave abuse of
discretion.
The Constitution provides for a bicameral Congress. Therefore, no bill can be enacted into law unless it is approved
by both chambers — the Senate and the House of Representatives (hereinafter House). Otherwise stated, each
chamber may propose and approve a bill, but until it is submitted to the other chamber and passed by the latter, it
cannot be submitted to the President for its approval into law.
Paragraph 2, Section 26, Article VI of the Constitution provides:
No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be
allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in
the journal.
The "three readings" refers to the three readings in both chambers.
There are, however, bills which must originate exclusively in the House. Section 24, Article VI of the Constitution
enumerates them:
Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
Webster's Third New International Dictionary 1 defines originate as follows:
vt 1: to cause the beginning of: give rise to: INITIATE . . . 2. to start (a person or thing) on a course
or journey . . . vi: to take or have origin: be derived: ARISE, BEGIN, START . . .
Black's Law Dictionary 2 defines the word exclusively in this wise:
Apart from all others; only; solely; substantially all or for the greater part. To the exclusion of all
others; without admission of others to participation; in a manner to exclude.
In City Mayor vs. The Chief of Philippine Constabulary,3 this Court said:
The term "exclusive" in its usual and generally accepted sense, means possessed to the exclusion of
others; appertaining to the subject alone, not including, admitting or pertaining to another or others,
undivided, sole. (15 Words and Phrases, p. 510, citing Mitchel v. Tulsa Water, Light, Heat and Power
Co., 95 P. 961, 21 Okl. 243; and p. 513, citing Commonwealth v. Superintendent of House of
Correction, 64 Pa. Super. 613, 615).
Indisputably then, only the House can cause the beginning or initiate the passage of any appropriation, revenue, or
tarriff bill, any bill increasing the public debt, any bill of local application, or any private bill. The Senate can only
"propose or concur with amendments."
Under the Rules of the Senate, the first reading is the reading of the title of the bill and its referral to the corresponding
committee; the second reading consists of the reading of the bill in the form recommended by the corresponding
committee; and the third reading is the reading of the bill in the form it will be after approval on second
reading. 4 During the second reading, the following takes place:
(1) Second reading of the bill;
(2) Sponsorship by the Committee Chairman or any member designated by the corresponding
committee;
(3) If a debate ensues, turns for and against the bill shall be taken alternately;
(4) The sponsor of the bill closes the debate;
(5) After the close of the debate, the period of amendments follows;
(6) Then, after the period of amendments is closed, the voting on the bill on second reading. 5
After approval on second readings, printed copies thereof in its final form shall be distributed to the Members of the
Senate at least three days prior to the third reading, except in cases of certified bills. At the third reading, the final vote
shall be taken and the yeas and nays shall be entered in the Journal. 6
Under the Rules of the House, the first reading of a bill consists of a reading of the number, title, and author followed
by the referral to the appropriate committees; 7 the second reading consists of the reading in full of the bill with the
amendments proposed by the committee, it any; 8 and the third reading is the reading of the bill in the form as
approved on second reading and takes place only after printed copies thereof in its final form have been distributed to
the Members at least three days before, unless the bill is
certified.9 At the second reading, the following takes place:
(1) Reading of the bill;
(2) Sponsorship;
(3) Debates;
(4) Period of Amendments; and
(5) Voting on Second Reading. 10
At the third reading, the votes shall be taken immediately and the yeas and nays entered in the Journal. 11
Clearly, whether in the Senate or in the House, every bill must pass the three readings on separate days, except when
the bill is certified. Amendments to the bill on third reading are constitutionally prohibited. 12
After its passage by one chamber, the bill should then be transmitted to the other chamber for its concurrence. Section
83, Rule XIV of the Rules of the House expressly provides:
Sec. 83. Transmittal to Senate. — The Secretary General, without need of express order, shall
transmit to the Senate for its concurrence all the bills and joint or concurrent resolutions approved by
the House or the amendments of the House to the bills or resolutions of the Senate, as the case may
be. If the measures approved without amendments are bills or resolutions of the Senate, or if
amendments of the Senate to bills of the House are accepted, he shall forthwith notify the Senate of
the action taken.
Simplified, this rule means that:
1. As to a bill originating in the House:
(a) Upon its approval by the House, the bill shall be transmitted to the Senate;
(b) The Senate may approve it with or without amendments;
(c) The Senate returns the bill to the House;
(d) The House may accept the Senate amendments; if it does not, the Secretary
General shall notify the Senate of that action. As hereinafter be shown, a request for
conference shall then be in order.
2. As to bills originating in the Senate;
(a) Upon its approval by the Senate, the bill shall be transmitted to the House;
(b) The House may approve it with or without amendments;
(c) The House then returns it to the Senate, informing it of the action taken;
(d) The Senate may accept the House amendements; if it does not, it shall notify the
House and make a request for conference.
The transmitted bill shall then pass three readings in the other chamber on separate days. Section 84, Rule XIV of the
Rules of the House states:
Sec. 84. Bills from the Senate. — The bills, resolutions and communications of the Senate shall be
referred to the corresponding committee in the same manner as bills presented by Members of the
House.
and Section 51, Rule XXIII of the Rules of the Senate provides:
Sec. 51. Prior to their final approval, bills and joint resolutions shall be read at least three times.
It is only when the period of disagreement is reached, i.e., amended proposed by one chamber to a bill originating
from the other are not accepted by the latter, that a request for conference is made or is in order. The request for
conference is specifically covered by Section 26, Rule XII of the Rules of the Senate which reads:
 Sec. 26. In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference committee of
both Houses which shall meet within ten days after its composition.
and Section 85, Rule XIV of the Rules of the House which reads:
Sec. 85. Conference Committee Reports. — In the event that the House does not agree with the
Senate on the amendments to any bill or joint resolution, the differences may be settled by conference
committees of both Chambers.
The foregoing provisions of the Constitution and the Rules of both chambers of Congress are mandatory.
In his Treatise On the Constitutional Limitations, 13 more particularly on enactment of bill, Cooley states:
Where, for an instance, the legislative power is to be exercised by two houses, and by settled and
well-understood parliamentary law these two houses are to hold separate sessions for their
deliberations, and the determination of the one upon a proposes law is to be submitted to the separate
determination of the other, the constitution, in providing for two houses, has evidently spoken in
reference to this settled custom, incorporating it as a rule of constitutional interpretation; so that it
would require no prohibitory clause to forbid the two houses from combining in one, and jointly
enacting laws by the vote of a majority of all. All those rules which are of the essentials of law-
making must be observed and followed; and it is only the customary rules of order and routine, such
as in every deliberative body are always understood to be under its control, and subject to constant
change at its will, that the constitution can be understood to have left as matters of discretion, to be
established, modified, or abolished by the bodies for whose government in non-essential matters they
exist.
In respect of appropriation, revenue, or tariff bills, bills increasing the public debt, bills of local application, or private
bills, the return thereof to the House after the Senate shall have "proposed or concurred with amendments" for the
former either to accept or reject the amendments would not only be in conformity with the foregoing rules but is also
implicit from Section 24 of Article VI.
With the foregoing as our guiding light, I shall now show the violations of the Constitution and of the Rules of the
Senate and of the House in the passage of R.A. No. 7716.
VIOLATIONS OF SECTION 24, ARTICLE VI
OF THE CONSTITUTION:
First violation. — Since R.A. No. 7716 is a revenue measure, it must originate exclusively in the House — not in the
Senate. As correctly asserted by petitioner Tolentino, on the face of the enrolled copy of R.A. No. 7716, it is a
"CONSOLIDATION OF HOUSE BILL NO. 11197 AND SENATE BILL NO. 1630." In short, it is an illicit marriage
of a bill which originated in the House and a bill which originated in the Senate. Therefore, R.A. No. 7716 did not
originate exclusively in the House.
The only bill which could serve as a valid basis for R.A. No. 7716 is House Bill (HB) No. 11197. This bill, which is
the substitute bill recommended by the House Committee on Ways and Means in substitution of House Bills Nos. 253,
771, 2450, 7033, 8086, 9030, 9210, 9397, 10012, and 10100, and covered by its Committee Report No. 367,14 was
approved on third reading by the House on 17 November 1993. 15 Interestingly, HB No. 9210, 16 which was filed by
Representative Exequiel B. Javier on 19 May 1993, was certified by the President in his letter to Speaker Jose de
Venecia, Jr. of 1 June 1993. 17 Yet, HB No. 11197, which substituted HB No. 9210 and the others above-stated, was
not. Its certification seemed to have been entirely forgotten.
On 18 November 1993, the Secretary-General of the House, pursuant to Section 83, Rule XIV of the Rules of the
House, transmitted to the President of the Senate HB No. 11197 and requested the concurrence of the Senate
therewith. 18
However, HB No. 11197 had passed only its first reading in that Senate by its referral to its Committee on Ways and
Means. That Committee never deliberated on HB No. 11197 as it should have. It acted only on Senate Bill (SB) No.
1129 19 introduced by Senator Ernesto F. Herrera on 1 March 1993. It then prepared and proposed SB No. 1630, and
in its Committee Report No.
349 20 which was submitted to the Senate on 7 February 1994, 21 it recommended that SB No. 1630 be approved "in
substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197." 22 It must be carefully
noted that SB No. 1630 was proposed and submitted for approval by the Senate in SUBSTITUTION of SB No. 1129,
and not HB No. 11197. Obviously, the principal measure which the Committee deliberated on and acted upon was SB
No. 1129 and not HB No. 11197. The latter, instead of being the only measure to be taken up, deliberated upon, and
reported back to the Senate for its consideration on second reading and, eventually, on third reading, was, at the most,
merely given by the Committee a passing glance.
This specific unequivocal action of the Senate Committee on Ways and Means, i.e., proposing and recommending
approval of SB No. 1630 as a substitute for or in substitution of SB No. 1129 demolishes at once the thesis of the
Solicitor General that:
Assuming that SB 1630 is distinct from HB 11197, amendment by substitution is within the purview
of Section 24, Article VI of the Constitution.
because, according to him, (a) "Section 68, Rule XXIX of the Rules of the Senate authorizes an amendment by
substitution and the only condition required is that "the text thereof is submitted in writing"; and (b) "[I]n Flint vs.
Stone Tracy Co. (220 U.S. 107) the United Stated Supreme Court, interpreting the provision in the United States
Constitution similar to Section 24, Article VI of the Philippine Constitution, stated that the power of the Senate to
amend a revenue bill includes substitution of an entirely new measure for the one originally proposed by the House of
Representatives." 23
This thesis is utterly without merit. In the first place, it reads into the Committee Report something which it had not
contemplated, that is, to propose SB No. 1630 in substitution of HB No. 11197; or speculates that the Committee may
have committed an error in stating that it is SB No. 1129, and not HB No. 11197, which is to be substituted by SB No.
1630. Either, of course, is unwarranted because the words of the Report, solemnly signed by the Chairman, Vice-
Chairman (who dissented), seven members, and three ex-officio
members, 24 leave no room for doubt that although SB No. 1129, P.S. Res No. 734, and HB No. 11197 were referred
to and considered by the Committee, it had prepared the attached SB No. 1630 which it recommends for approval "in
substitution of S.B. No. 11197, taking into consideration P.S. No. 734 and H.B. No. 11197 with Senators Herrera,
Angara, Romulo, Sotto, Ople and Shahani as authors." To do as suggested would be to substitute the judgment of the
Committee with another that is completely inconsistent with it, or, simply, to capriciously ignore the facts.
In the second place, the Office of the Solicitor General intentionally made it appear, to mislead rather than to persuade
us, that in Flint vs. Stone Tracy
Co. 25 The U.S. Supreme Court ruled, as quoted by it in the Consolidated Memorandum for Respondents, as
follows: 26
The Senate has the power to amend a revenue bill. This power to amend is not confined to the
elimination of provisions contained in the original act, but embraces as well the addition of such
provisions thereto as may render the original act satisfactory to the body which is called upon to
support it. It has, in fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment.
xxx xxx xxx
It is contended in the first place that this section of the act is unconstitutional, because it is a revenue
measure, and originated in the Senate in violation of Section 7 of article 1 of the Constitution,
providing that "all bills for raising revenue shall originate in the House of Representatives, but the
Senate may propose or concur with the amendments, as on other bills."
The first part is not a statement of the Court, but a summary of the arguments of counsel in one of the companion
cases (No. 425, entitled, "Gay vs. Baltic Mining Co."). The second part is the second paragraph of the opinion of the
Court delivered by Mr. Justice Day. The misrepresentation that the first part is a statement of the Court is highly
contemptuous. To show such deliberate misrepresentation, it is well to quote what actually are found in 55 L.Ed. 408,
410, to wit:
Messrs. Charles A. Snow and Joseph H. Knight filed a brief for appellees in No. 425:
xxx xxx xxx
The Senate has the power to amend a revenue bill. This power to amend is not confined to the
elimination of provisions contained in the original act, but embraces as well the addition of such
provisions thereto as may render the original act satisfactory to the body which is called upon to
 support it. It has, in fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment.
Brake v. Collison, 122 Fed. 722.
Mr. James L. Quackenbush filed a statement for appellees in No. 442.
Solicitor General Lehmann (by special leave) argued the cause for the United States on reargument.
Mr. Justice Day delivered the opinion of the court:
These cases involve the constitutional validity of 38 of the act of Congress approved
August 5, 1909, known as "the corporation tax" law. 36 Stat. at L. 11, 112-117, chap.
6, U.S. Comp. Stat. Supp. 1909, pp. 659, 844-849.
It is contended in the first place that this section of the act is unconstitutional,
because it is a revenue measure, and originated in the Senate in violation of 7 of
article 1 of the Constitution, providing the "all bills for raising revenue shall
originate in the House of Representatives, but the Senate may propose or concur
with the amendments, as on other bills." The history of the act is contained in the
government's brief, and is accepted as correct, no objection being made to its
accuracy.
This statement shows that the tariff bill of which the section under consideration is a
part, originated in the House of Representatives, and was there a general bill for the
collection of revenue. As originally introduced, it contained a plan of inheritance
taxation. In the Senate the proposed tax was removed from the bill, and the
corporation tax, in a measure, substituted therefor. The bill having properly
originated in the House, we perceive no reason in the constitutional provision relied
upon why it may not be amended in the Senate in the manner which it was in this
case. The amendment was germane to the subject-matter of the bill, and not beyond
the power of the Senate to propose. (Emphasis supplied)
xxx xxx xxx
As shown above, the underlined portions were deliberately omitted in the quotation made by the Office of the
Solicitor General.
In the third place, a Senate amendment by substitution with an entirely new bill of a bill, which under Section 24,
Article VI of the Constitution can only originate exclusively in the House, is not authorized by said Section 24. Flint
vs. Stone Tracy Co. cannot be invoked in favor of such a view. As pointed out by Mr. Justice Florenz D. Regalado
during the oral arguments of these cases and during the initial deliberations thereon by the Court, Flint involves a
Senate amendment to a revenue bill which, under the United States Constitution, should originate from the House of
Representatives. The amendment consisted of the substitution of a corporation tax in lieu of the plan of inheritance
taxation contained in a general bill for the collection of revenue as it came from the House of Representatives where
the bill originated. The constitutional provision in question is Section 7, Article I of the United States Constitution
which reads:
Sec. 7. Bills and Resolutions. — All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments, as on other Bills.
This provision, contrary to the misleading claim of the Solicitor General, is not similar to Section 24, Article VI of our
Constitution, which for easy comparison is hereunder quoted again:
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
Note that in the former the word exclusively does not appear. And, in the latter, the phrase "as on other Bill," which is
found in the former, does not appear. These are very significant in determining the authority of the upper chamber
over the bills enumerated in Section 24. Since the origination is not exclusively vested in the House of
Representatives of the United States, the Senate's authority to propose or concur with amendments is necessarily
broader. That broader authority is further confirmed by the phrase "as on other Bills," i.e., its power to propose or
concur with amendments thereon is the same as in ordinary bills. The absence of this phrase in our Constitution was
clearly intended to restrict or limit the Philippine Senate's power to propose or concur with amendments. In the light
of the exclusivity of origination and the absence of the phrase "as on other Bills," the Philippine Senate cannot amend
by substitution with an entirely new bill of its own any bill covered by Section 24 of Article VI which the House of
Representatives transmitted to it because such substitution would indirectly violate Section 24.
These obvious substantive differences between Section 7, Article I of the U.S. Constitution and Section 24, Article VI
of our Constitution are enough reasons why this Court should neither allow itself to be misled by Flint vs. Stonenor be
awed by Rainey vs. United States 27 and the opinion of Messrs. Ogg and Ray 28 which the majority cites to support the
view that the power of the U.S. Senate to amend a revenue measure is unlimited. Rainey concerns the Tariff Act of
1909 of the United States of America and specifically involved was its Section 37 which was an amendment
introduced by the U.S. Senate. It was claimed by the petitioners that the said section is a revenue measure which
should originate in the House of Representatives. The U.S. Supreme Court, however, adopted and approved the
finding of the court a quo that:
the section in question is not void as a bill for raising revenue originating in the Senate, and not in the
House of Representatives. It appears that the section was proposed by the Senate as an amendment to
a bill for raising revenue which originated in the House. That is sufficient.
Messrs. Ogg and Ray, who are professors emeritus of political science, based their statement not even on a case
decided by the U.S. Supreme Court but on their perception of what Section 7, Article I of the U.S. Constitution
permits. In the tenth edition (1951) of their work, they state:
Any bill may make its first appearance in either house, except only that bills for raising revenue are
required by the constitution to "originate" in the House of Representatives. Indeed, through its right
to amend revenue bills, even to the extent of substituting new ones, the Senate may, in effect,
originate them also. 29
Their "in effect" conclusion is, of course, logically correct because the word exclusively does not appear in said
Section 7, Article I of the U.S. Constitution.
Neither can I find myself in agreement with the view of the majority that the Constitution does not prohibit the filing
in the Senate of a substitute bill in anticipation of its receipt of the bill from the House so long as action by the Senate
as a body is withheld pending receipt of the House bill, thereby stating, in effect, that S.B. No. 1129 was such an
anticipatory substitute bill, which, nevertheless, does not seem to have been considered by the Senate except only after
its receipt of H.B. No. 11179 on 23 November 1993 when the process of legislation in respect of it began with a
referral to the Senate Committee on Ways and Means. Firstly, to say that the Constitution does not prohibit it is to
render meaningless Section 24 of Article VI or to sanction its blatant disregard through the simple expedient of filing
in the Senate of a so-called anticipatory substitute bill. Secondly, it suggests that S.B. No. 1129 was filed as an
anticipatory measure to substitute for H.B. No. 11179. This is a speculation which even the author of S.B. No. 1129
may not have indulged in. S.B. No. 1129 was filed in the Senate by Senator Herrera on 1 March 1993. H.B. No. 11197
was approved by the House on third reading only on 17 November 1993. Frankly, I cannot believe that Senator
Herrera was able to prophesy that the House would pass any VAT bill, much less to know its provisions. That "it does
not seem that the Senate even considered" the latter not until after its receipt of H.B. No. 11179 is another speculation.
As stated earlier, S.B. No. 1129 was filed in the Senate on 1 March 1993, while H.B. No. 11197 was transmitted to the
Senate only on 18 November 1993. There is no evidence on record to show that both were referred to the Senate
Committee on Ways and Means at the same time. Finally, in respect of H.B. No. 11197, its legislative process did not
begin with its referral to the Senate's Ways and Means Committee. It began upon its filing, as a Committee Bill of the
House of Committee on Ways and Means, in the House.
Second violation. — Since SB No. 1129 is a revenue measure, it could not even be validly introduced or initiated in
the Senate. It follows too, that the Senate cannot validly act thereon.
Third violation. — Since SB No. 1129 could not have been validly introduced in the Senate and could not have been
validly acted on by the Senate, then it cannot be substituted by another revenue measure, SB No. 1630, which the
Senate Committee on Ways and Means introduced in substitution of SB No. 1129. The filing or introduction in the
Senate of SB No. 1630 also violated Section 24, Article VI of the Constitution.
VIOLATIONS OF SECTION 26(2), ARTICLE VI
OF THE CONSTITUTION:
First violation. — The Senate, despite its lack of constitutional authority to consider SB No. 1630 or SB No. 1129
which the former substituted, opened deliberations on second reading of SB No. 1630 on 8 February 1994. On 24
March 1994, the Senate approved it on second reading and on third reading. 30 That approval on the same day violated
Section 26(2), Article VI of the Constitution. The justification therefor was that on 24 February 1994 the President
certified to "the necessity of the enactment of SB No. 1630 . . . to meet a public emergency." 31
I submit, however, that the Presidential certification is void ab initio not necessarily for the reason adduced by
petitioner Kilosbayan, Inc., but because it was addressed to the Senate for a bill which is prohibited from originating
therein. The only bill which could be properly certified on permissible constitutional grounds even if it had already
been transmitted to the Senate is HB No. 11197. As earlier observed, this was not so certified, although HB No. 9210
(one of those consolidated into HB No. 11197) was certified on 1 June 1993. 32
Also, the certification of SB No. 1630 cannot, by any stretch of the imagination, be extended to HB No. 11197
because SB No. 1630 did not substitute HB No. 11197 but SB No. 1129.
Considering that the certification of SB No. 1630 is void, its approval on second and third readings in one day
violated Section 26(2), Article VI of the Constitution.
Second violation. — It further appears that on 24 June 1994, after the approval of SB No. 1630, the Secretary of the
Senate, upon directive of the Senate President, formally notified the House Speaker of the Senate's approval thereof
and its request for a bicameral conference "in view of the disagreeing provisions of said bill and House Bill No.
11197." 33
It must be stressed again that HB No. 11197 was never submitted for or acted on second and third readings in the
Senate, and SB No. 1630 was never sent to the House for its concurrence. Elsewise stated, both were only half-way
through the legislative mill. Their submission to a conference committee was not only anomalously premature, but
violative of the constitutional rule on three readings.
The suggestion that SB No. 1630 was not required to be submitted to the House for otherwise the procedure would be
endless, is unacceptable for, firstly, it violates Section 26, Rule XII of the Rules of the Senate and Section 85, Rule
XIV of the Rules of the House, and, secondly, it is never endless. If the chamber of origin refuses to accept the
amendments of the other chamber, the request for conference shall be made.
VIOLATIONS OF THE RULES OF BOTH CHAMBERS;
GRAVE ABUSE OF DISCRETION.
The erroneous referral to the conference committee needs further discussion. Since S.B. No. 1630 was not a substitute
bill for H.B. No. 11197 but for S.B. No. 1129, it (S.B. No. 1630) remained a bill which originated in the Senate. Even
assuming arguendo that it could be validly initiated in the Senate, it should have been first transmitted to the House
where it would undergo three readings. On the other hand, since HB No. 11197 was never acted upon by the Senate on
second and third readings, no differences or inconsistencies could as yet arise so as to warrant a request for a
conference. It should be noted that under Section 83, Rule XIV of the Rules of the House, it is only when the Senate
shall have approved with amendments HB no. 11197 and the House declines to accept the amendments after having
been notified thereof that the request for a conference may be made by the House, not by the Senate. Conversely, the
Senate's request for a conference would only be proper if, following the transmittal of SB No. 1630 to the House, it
was approved by the latter with amendments but the Senate rejected the amendments.
Indisputably then, when the request for a bicameral conference was made by the Senate, SB No. 1630 was not yet
transmitted to the House for consideration on three readings and HB No. 11197 was still in the Senate awaiting
consideration on second and third readings. Their referral to the bicameral conference committee was palpably
premature and, in so doing, both the Senate and the House acted without authority or with grave abuse of discretion.
Nothing, and absolutely nothing, could have been validly acted upon by the bicameral conference committee.
GRAVE ABUSE OF DISCRETION COMMITTED BY
THE BICAMERAL CONFERENCE COMMITTEE.
Serious irregularities amounting to lack of jurisdiction or grave abuse of discretion were committed by the bicameral
conference committee.
First, it assumed, and took for granted that SB No. 1630 could validly originate in the Senate. This assumption is
erroneous.
Second, it assumed that HB No. 11197 and SB No. 1630 had properly passed both chambers of Congress and were
properly and regularly submitted to it. As earlier discussed, the assumption is unfounded in fact.
Third, per the bicameral conference committee's proceedings of 19 April 1994, Representative Exequiel Javier,
Chairman of the panel from the House, initially suggested that HB No. 11197 should be the "frame of reference,"
because it is a revenue measure, to which Senator Ernesto Maceda concurred. However, after an incompletely
recorded reaction of Senator Ernesto Herrera, Chairman of the Senate panel, Representative Javier seemed to agree
that "all amendments will be coming from the Senate." The issue of what should be the "frame of reference" does not
appear to have been resolved. These facts are recorded in this wise, as quoted in the Consolidated Memorandum for
Respondents: 34
CHAIRMAN JAVIER.
First of all, what would be the basis, no, or framework para huwag naman mawala yung personality
namin dito sa bicameral, no, because the bill originates from the House because this is a revenue bill,
so we would just want to ask, we make the House Bill as the frame of reference, and then everything
will just be inserted?
HON. MACEDA.
Yes. That's true for every revenue measure. There's no other way. The House Bill has got to be the
base. Of course, for the record, we know that this is an administration; this is certified by the
President and I was about to put into the records as I am saying now that your problem about the
impact on prices on the people was already decided when the President and the administration sent
this to us and certified it. They have already gotten over that political implication of this bill and the
economic impact on prices.
CHAIRMAN HERRERA.
Yung concern mo about the bill as the reference in this discussion is something that we can just . . .
CHAIRMAN JAVIER.
We will just . . . all the amendments will be coming from the Senate.
(BICAMERAL CONFERENCE ON MAJOR DIFFERENCES BETWEEN HB NO. 11197 AND SB
NO. 1630 [Cte. on Ways & Means] APRIL 19, 1994, II-6 and II-7; Emphasis supplied)
These exchanges would suggest that Representative Javier had wanted HB No. 11197 to be the principal measure on
which reconciliation of the differences should be based. However, since the Senate did not act on this Bill on second
and third readings because its Committee on Ways and Means did not deliberate on it but instead proposed SB No.
1630 in substitution of SB No. 1129, the suggestion has no factual basis. Then, when finally he agreed that "all
amendments will be coming from the Senate," he in fact withdrew the former suggestion and agreed that SB No.
1630, which is the Senate version of the Value Added Tax (VAT) measure, should be the "frame of reference." But
then SB No. 1630 was never transmitted to the House for the latter's concurrence. Hence, it cannot serve as the "frame
of reference" or as the basis for deliberation. The posture taken by Representative Javier also indicates that SB No.
1630 should be taken as the amendment to HB No. 11197. This, too, is unfounded because SB No. 1630 was not
proposed in substitution of HB No. 11197.
Since SB No. 1630 did not pass three readings in the House and HB No. 11197 did not pass second and third readings
in the Senate, it logically follows that no disagreeing provisions had as yet arisen. The bicameral conference
committee erroneously assumed the contrary.
Even granting arguendo that both HB No. 11197 and SB No. 1630 had been validly approved by both chambers of
Congress and validly referred to the bicameral conference committee, the latter had very limited authority thereon. It
was created "in view of the disagreeing provisions of" the two bills. 35 Its duty was limited to the reconciliation of
disagreeing provisions or the resolution of differences or inconsistencies. The committee recognized that limited
authority in the opening paragraph of its Report 36 when it said:
The Conference Committee on the disagreeing provisions of House Bill No. 11197 . . . and Senate
Bill No. 1630 . . . .
Under such limited authority, it could only either (a) restore, wholly or partly, the specific provisions of HB No. 11197
amended by SB No. 1630, (b) sustain, wholly or partly, the Senate's amendments, or (c) by way of a compromise, to
agree that neither provisions in HB No. 11197 amended by the Senate nor the latter's amendments thereto be carried
into the final form of the former.
But as pointed out by petitioners Senator Raul Roco and Kilosbayan, Inc., the bicameral conference committee not
only struck out non-disagreeing provisions of HB No. 11197 and SB No. 1630, i.e., provisions where both bills are in
full agreement; it added more activities or transactions to be covered by VAT, which were not within the
contemplation of both bills.
Since both HB No. 11197 and SB No. 1630 were still half-cooked in the legislative vat, and were not ready for referral
to a conference, the bicameral conference committee clearly acted without jurisdiction or with grave abuse of
discretion when it consolidated both into one bill which became R.A. No. 7716.
APPROVAL BY BOTH CHAMBERS OF CONFERENCE
COMMITTEE REPORT AND PROPOSED BILL DID
NOT CURE CONSTITUTIONAL INFIRMITIES.
I cannot agree with the suggestion that since both the Senate and the House had approved the bicameral conference
committee report and the bill proposed by it in substitution of HB No. 11197 and SB No. 1630, whatever infirmities
may have been committed by it were cured by ratification. This doctrine of ratification may apply to minor procedural
flaws or tolerable breachs of the parameters of the bicameral conference committee's limited powers but never to
violations of the Constitution. Congress is not above the Constitution. In the instant case, since SB No. 1630 was
introduced in violation of Section 24, Article VI of the Constitution, was passed in the Senate in violation of the "three
readings" rule, and was not transmitted to the House for the completion of the constitutional process of legislation,
and HB No. 11197 was not likewise passed by the Senate on second and third readings, neither the Senate nor the
House could validly approve the bicameral conference committee report and the proposed bill.
In view of the foregoing, the conclusion is inevitable that for non-compliance with mandatory provisions of the
Constitution and of the Rules of the Senate and of the House on the enactment of laws, R.A. No. 7716 is
unconstitutional and, therefore, null and void. A discussion then of the instrinsic validity of some of its provisions
would be unnecessary.
The majority opinion, however, invokes the enrolled bill doctrine and wants this Court to desist from looking behind
the copy of the assailed measure as certified by the Senate President and the Speaker of the House. I respectfully
submit that the invocation is misplaced. First, as to the issue of origination, the certification in this case explicitly
states that R.A. No. 7716 is a "consolidation of House Bill No. 11197 and Senate Bill No. 1630." This is conclusive
evidence that the measure did not originate exclusively in the House. Second, the enrolled bill doctrine is of American
origin, and unquestioned fealty to it may no longer be justified in view of the expanded jurisdiction 37 of this Court
under Section 1, Article VIII of our Constitution which now expressly grants authority to this Court to:
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
Third, even under the regime of the 1935 Constitution which did not contain the above provision, this Court,
through Mr. Chief Justice Makalintal, in Astorga vs. Villegas, 38 declared that it cannot be truly said
thatMabanag vs. Lopez
Vito 39 has laid to rest the question of whether the enrolled bill doctrine or the journal entry rule should be
adhered to in this jurisdiction, and stated:
As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the
presiding officers. It is merely a mode of authentication. The lawmaking process in Congress ends
when the bill is approved by both Houses, and the certification does not add to the validity of the bill
or cure any defect already present upon its passage. In other words, it is the approval of Congress and
not the signatures of the presiding officers that is essential. Thus the (1935) Constitution says that
"[e]very bill passed by the Congress shall, before it becomes law, be presented to the President."
In Brown vs. Morris, supra, the Supreme Court of Missouri, interpreting a similar provision in the
State Constitution, said that the same "makes it clear that the indispensable step in the passage" and it
follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding officer, other
proof that it has "passed both houses will satisfy the constitutional requirement."
Fourth, even in the United States, the enrolled bill doctrine has been substantially undercut. This is shown in the
disquisitions of Mr. Justice Reynato S. Puno in his dissenting opinion, citing Sutherland, Statutory Construction.
Last, the pleadings of the parties have established beyond doubt that HB No. 11197 was not acted on second and third
readings in the Senate and SB No. 1630, which was approved by the Senate on second and third readings in
substitution of SB No. 1129, was never transmitted to the House for its passage. Otherwise stated, they were only
passed in their respective chamber of origin but not in the other. In no way can each become a law under paragraph 2,
Section 26, Article VI of the Constitution. For the Court to close its eyes to this fact because of the enrolled bill
doctrine is to shrink its duty to hold "inviolate what is decreed by the Constitution." 40
I vote then to GRANT these petitions and to declare R.A. No. 7716 as unconstitutional.

ROMERO, J.:
Few issues brought before this Court for resolution have roiled the citizenry as much as the instant case brought by
nine petitioners which challenges the constitutionality of Republic Act No. 7716 (to be referred to herein as the
"Expanded Value Added Tax" or EVAT law to distinguish it from Executive Order No. 273 which is the VAT law
proper) that was enacted on May 5, 1994. A visceral issue, it has galvanized the populace into mass action and strident
protest even as the EVAT proponents have taken to podia and media in a post facto information campaign.
The Court is confronted here with an atypical case. Not only is it a vatful of seething controversy but some unlikely
petitioners invoke unorthodox remedies. Three Senator-petitioners would nullify a statute that bore the indispensable
stamp of approval of their own Chamber with two of them publicly repudiating what they had earlier endorsed. With
two former colleagues, one of them an erstwhile Senate President, making common cause with them, they would stay
the implementation by the Executive Department of a law which they themselves have initiated. They address a prayer
to a co-equal Department to probe their official acts for any procedural irregularities they have themselves committed
lest the effects of these aberrations inflict such damage or irreparable loss as would bring down the wrath of the
people on their heads.
To the extent that they perceive that a vital cog in the internal machinery of the Legislature has malfunctioned from
having operated in blatant violation of the enabling Rules they have themselves laid down, they would now plead that
this other Branch of Government step in, invoking the exercise of what is at once a delicate and awesome power.
Undoubtedly, the case at bench is as much a test for the Legislature as it is for the Judiciary.
A backward glance on the Value Added Tax (VAT) is in order at this point.
The first codification of the country's internal revenue laws was effected with the enactment of Commonwealth Act
No. 466, commonly known as the 'National Internal Revenue Code' which was approved on June 15, 1939 and took
effect on July 1, 1939, although the provisions on the income tax were made retroactive to January 1, 1939.
Since 1939 when the turnover tax was replaced by the manufacturer's sales tax, the Tax Code had
provided for a single-stage value-added tax on original sales by manufacturers, producers and
importers computed on the "cost deduction method" and later, on the basis of the "tax credit method."
The turnover tax was re-introduced in 1985 by Presidential Decree No. 1991 (as amended by
Presidential Decree No. 2006). 1
In 1986, a tax reform package was approved by the Aquino Cabinet. It contained twenty-nine measures, one of which
proposed the adoption of the VAT, as well as the simplification of the sales tax structure and the abolition of the
turnover tax.
Up until 1987, the system of taxing goods consisted of (a) an excise tax on certain selected articles
(b) fixed and percentage taxes on original and subsequent sales, on importations and on milled
articles and (c) mining taxes on mineral products. Services were subjected to percentage taxes based
mainly on gross receipts. 2
On July 25, 1987, President Corazon C. Aquino signed into law Executive Order No. 273 which adopted the VAT.
From the former single-stage value-added tax, it introduced the multi-stage VAT system where "the value-added tax is
imposed on the sale of and distribution process culminating in sale, to the final consumer. Generally described, the
taxpayer (the seller) determines his tax liability by computing the tax on the gross selling price or gross receipt
("output tax") and subtracting or crediting the earlier VAT on the purchase or importation of goods or on the sale of
service ("input tax") against the tax due on his own sale." 3
On January 1, 1988, implementing rules and regulations for the VAT were promulgated. President Aquino then issued
Proclamation No. 219 on February 12, 1988 urging the public and private sectors to join the nationwide consumers'
education campaign for VAT.
Soon after the implementation of Executive Order No. 273, its constitutionality was assailed before this Court in the
case of Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc., et al. v. Tan. 4 The four petitioners sought
to nullify the VAT law "for being unconstitutional in that its enactment is not allegedly within the powers of the
President; that the VAT is oppressive, discriminatory, regressive, and violates the due process and equal protection
clauses and other provisions of the 1987 Constitution." 5 In dismissing the consolidated petitions, this Court stated:
The Court, following the time-honored doctrine of separation of powers cannot substitute its
judgment for that of the President as to the wisdom, justice and advisability of the VAT. The Court
can only look into and determine whether or not Executive Order No. 273 was enacted and made
effective as law, in the manner required by and consistent with, the Constitution, and to make sure
that it was not issued in grave abuse of discretion amounting to lack or excess of jurisdiction; and, in
this regard, the Court finds no reason to impede its application or continued implementation. 6
Although declared constitutional, the VAT law was sought to be amended from 1992 on by a series of bills filed in
both Houses of Congress. In chronological sequence, these were:

HB/SB No. Date Filed in Congress

HB No. 253 - July 22, 1992
HB No. 771 - August 10, 1992
HB No. 2450 - September 9, 1992
Senate Res. No. 7347 - September 10, 1992
HB No. 7033 - February 3, 1993
SB No. 11298 - March 1, 1993
HB No. 8086 - March 9, 1993
HB No. 9030 - May 11, 1993
HB No. 9210 9 - May 19, 1993
HB No. 9297 - May 25, 1993
HB No. 10012 - July 28, 1993
HB No. 10100 - August 3, 1993
HB No. 11197 in substitution of HB Nos. 253, 771, 2450, 7033, 8086, 9030,
9210, 9297, 10012 and
10100 10 - November 5, 1993
We now trace the course taken by H.B. No. 11197 and S.B. No. 1129.
HB/SB No.
HB No. 11197 was approved in the Lower House onsecond reading - November 11,
1993
HB No. 11197 was approved in
the Lower House on third
reading and voted upon
with 114 Yeas and 12 Nays - November 17, 1993
HB No. 11197 was transmitted
to the Senate - November 18, 1993
Senate Committee on Ways and
Means submitted Com.
Report No. 349 recommeding
for approval SB No. 1630 in
 substitution of SB No. 1129,
taking into consideration PS Res. No.
734 and HB No. 11197 11 - February 7, 1994
Certification by President Fidel V.
Ramos of Senate Bill No.
1630 for immediate enactment
to meet a public emergency - March 22, 1994
SB No. 1630 was approved by
the Senate on second and third
readings and subsequently
voted upon with 13 yeas, none
against and one abstention - March 24, 1994
Transmittal by the Senate to the
Lower House of a request
for a conference in view of
disagreeing provisions of
SB No. 1630 and HB NO.
11197 - March 24, 1994
The Bicameral Conference Committee
conducted various meetings to
reconcile the proposals on the
VAT - April 13, 19, 20, 21, 25
The House agreed on the Conference
Committee Report - April 27, 1994
The Senate agreed on the Conference
Committee Report - May 2, 1994
The President signed Republic Act
No. 7716 - The Expanded
VAT Law 12 - May 5, 1994
Republic Act No. 7716 was
published in two newspapers
of general circulation - May 12, 1994
Republic Act No. 7716 became
effective - May 28, 1994

Republic Act No. 7716 merely expanded the base of the VAT law even as the tax retained its multi-stage character.
At the oral hearing held on July 7, 1994, this Court delimited petitioners' arguments to the following issues culled
from their respective petitions.
PROCEDURAL ISSUES
Does Republic Act No. 7716 violate Article VI, Section 24, of the Constitution? 13
Does it violate Article VI, Section 26, paragraph 2, of the
Constitution? 14
What is the extent of the power of the Bicameral Conference Committee?
SUBSTANTIVE ISSUES
Does the law violate the following provisions in Article III (Bill of Rights) of the Constitution:
1. Section 1 15
 2. Section 4 16
3. Section 5 17
4. Section 10 18
Does the law violate the following other provisions of the Constitution?
1. Article VI, Section 28, paragraph 1 19
2. Article VI, Section 28, paragraph 3 20
As a result of the unedifying experience of the past where the Court had the propensity to steer clear of questions it
perceived to be "political" in nature, the present Constitution, in contrast, has explicitly expanded judicial power to
include the duty of the courts, especially the Supreme Court, "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." 21 I submit that under this explicit mandate, the Court is empowered to rule upon acts of other
Government entities for the purpose of determining whether there may have been, in fact, irregularities committed
tantamount to violation of the Constitution, which case would clearly constitute a grave abuse of discretion on their
part.
In the words of the sponsor of the above-quoted Article of the Constitution on the Judiciary, the former Chief Justice
Roberto R. Concepcion, "the judiciary is the final arbiter on the question of whether or not a branch of government or
any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a
duty to pass judgment on matters of this nature.
This is the back ground of paragraph 2 of Section 1, which means that the courts cannot hereafter exhibit its wonted
reticence by claiming that such matters constitute a political question." 22
In the instant petitions, this Court is called upon, not so much to exercise its traditional power of judicial review as to
determine whether or not there has indeed been a grave abuse of discretion on the part of the Legislature amounting to
lack or excess of jurisdiction.
Where there are grounds to resolve a case without touching on its constitutionality, the Court will do so with utmost
alacrity in due deference to the doctrine of separation of powers anchored on the respect that must be accorded to the
other branches of government which are coordinate, coequal and, as far as practicable, independent of one another.
Once it is palpable that the constitutional issue is unavoidable, then it is time to assume jurisdiction, provided that the
following requisites for a judicial inquiry are met: that there must be an actual and appropriate case; a personal and
substantial interest of the party raising the constitutional question; the constitutional question must be raised at the
earliest possible opportunity and the decision of the constitutional question must be necessary to the determination of
the case itself, the same being the lis mota of the case. 23
Having assured ourselves that the above-cited requisites are present in the instant petitions, we proceed to take them
up.
ARTICLE VI, SECTION 24
Some petitioners assail the constitutionality of Republic Act No. 7716 as being in violation of Article VI, Section 24
of the Constitution which provides:
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills, shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
In G.R. Nos. 115455 and 115781, petitioners argue:
(a) The bill which became Republic Act No. 7716 did not originate exclusively in the House of Representatives. The
Senate, after receiving H.B. No. 11197, submitted its own bill, S.B. No. 1630, and proceeded to vote and approve the
same after second and third readings.
(b) The Senate exceeded its authority to "propose or concur with amendments" when it submitted its own bill, S.B.
No. 1630, recommending its approval "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734
and H.B. No. 11197."
(c) H.B. No. 11197 was not deliberated upon by the Senate. Neither was it voted upon by the Senate on second and
third readings, as what was voted upon was S.B. No. 1630.
Article VI, Section 24 is taken word for word from Article VI, Section 18 of the 1935 Constitution which was, in turn,
patterned after Article I, Section 7 (1) of the Constitution of the United States, which states:
All bills for raising revenue shall originate in the House of Representatives, but the Senate may
propose or concur with amendments as on other bills.
The historical precedent for requiring revenue bills to originate in Congress is explained in the U.S. case ofMorgan v.
Murray. 24
The constitutional requirement that all bills for raising revenue shall originate in the House of
Representatives stemmed from a remedial outgrowth of the historic conflict between Parliament (i.e.,
Commons) and the Crown, whose ability to dominate the monarchially appointive and hereditary
Lords was patent. See 1 Story, Constitution, S 875 et seq., 5th Ed.; 1 Cooley, Constitutional
Limitations, pp. 267, 268, 8th Ed., 1 Sutherland, Statutory Construction, S 806, 3d Ed. There was a
measure of like justification for the insertion of the provision of article I, S 7, cl. 1, of the Federal
Constitution. At that time (1787) and thereafter until the adoption (in 1913) of the Seventeenth
Amendment providing for the direct election of senators, the members of the United States Senate
were elected for each state by the joint vote of both houses of the Legislature of the respective states,
and hence, were removed from the people . . .
The legislative authority under the 1935 Constitution being unicameral, in the form of the National Assembly, it
served no purpose to include the subject provision in the draft submitted by the 1934 Constitutional Convention to the
Filipino people for ratification.
In 1940, however, the Constitution was amended to establish a bicameral Congress of the Philippines composed of a
House of Representatives and a Senate.
In the wake of the creation of a new legislative machinery, new provisions were enacted regarding the law-making
power of Congress. The National Assembly explained how the final formulation of the subject provision came about:
The concurrence of both houses would be necessary to the enactment of a law. However, all
appropriation, revenue or tariff bills, bills authorizing an increase of the public debt, bills of local
application, and private bills, should originate exclusively in the House of Representatives, although
the Senate could propose or concur with amendments.
In one of the first drafts of the amendments, it was proposed to give both houses equal powers in
lawmaking. There was, however, much opposition on the part of several members of the Assembly.
In another draft; the following provision, more restrictive than the present provision in the
amendment, was proposed and for sometime was seriously considered:
All bills appropriating public funds, revenue or tariff bills, bills of local application,
and private bills shall originate exclusively in the Assembly, but the Senate may
propose or concur with amendments. In case of disapproval by the Senate of any
such bills, the Assembly may repass the same by a two-thirds vote of all its
members, and thereupon, the bill so repassed shall be deemed enacted and may be
submitted to the President for corresponding action. In the event that the Senate
should fail to finally act on any such bills, the Assembly may, after thirty days from
the opening of the next regular sessions of the same legislative term, reapprove the
same with a vote of two-thirds of all the members of the Assembly. And upon such
reapproval, the bill shall be deemed enacted and may be submitted to the president
for corresponding action.
However, the special committee voted finally to report the present amending provision as it is now
worded; and in that form it was approved by the National Assembly with the approval of Resolution
No. 38 and later of Resolution No. 73. 25 (Emphasis supplied)
Thus, the present Constitution is identically worded as its 1935 precursor: "All appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with amendments." (Emphasis supplied)
That all revenue bills, such as Republic Act No. 7716, should "originate exclusively in the House of Representatives"
logically flows from the more representative and broadly-based character of this Chamber.
It is said that the House of Representatives being the more popular branch of the legislature, being
closer to the people, and having more frequent contacts with them than the Senate, should have the
privilege of taking the initiative in the proposals of revenue and tax project, the disposal of the
people's money, and the contracting of public indebtedness.
These powers of initiative in the raising and spending of public funds enable the House of
Representatives not only to implement but even to determine the fiscal policies of the government.
They place on its shoulders much of the responsibility of solving the financial problems of the
government, which are so closely related to the economic life of the country, and of deciding on the
proper distribution of revenues for such uses as may best advance public interests. 26
The popular nature of the Lower House has been more pronounced with the inclusion of Presidentially-appointed
sectoral representatives, as provided in Article VI, Section 5 (2), of the Constitution, thus: "The party-list
representatives shall constitute twenty per centum of the total number of representatives including those under the
party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the
religious sector." (Emphasis supplied)
This novel provision which was implemented in the Batasang Pambansa during the martial law regime 27 was
eventually incorporated in the present Constitution in order to give those from the marginalized and often deprived
sector, an opportunity to have their voices heard in the halls of the Legislature, thus giving substance and meaning to
the concept of "people empowerment."
That the Congressmen indeed have access to, and consult their constituencies has been demonstrated often enough by
the fact that even after a House bill has been transmitted to the Senate for concurrence, some Congressmen have been
known to express their desire to change their earlier official position or reverse themselves after having heard their
constituents' adverse reactions to their representations.
In trying to determine whether the mandate of the Constitution with regard to the initiation of revenue bills has been
preserved inviolate, we have recourse to the tried and tested method of definition of terms. The term "originate" is
defined by Webster's New International Dictionary (3rd Edition, 1986) as follows: "v.i., to come into being; begin; to
start."
On the other hand, the word "exclusively" is defined by the same Webster's Dictionary as "in an exclusive manner; to
the exclusion of all others; only; as, it is his, exclusively." Black's Law Dictionary has this definition: "apart from all
others; only; solely; substantially all or for the greater part. To the exclusion of all other; without admission of others
to participation; in a manner to exclude. Standard Oil Co. of Texas v. State, Tex. Civ. App., 142 S.W. 2d 519, 521, 522,
523."
This Court had occasion to define the term "exclusive" as follows:
. . . In its usual and generally accepted sense, the term means possessed to the exclusion of others;
appertaining to the subject alone; not including, admitting or pertaining to another or others;
undivided, sole. 28
When this writer, during the oral argument of July 7, 1994, asked the petitioner in G.R. No. 115455 whether he
considers the word "exclusively" to be synonymous with "solely," he replied in the affirmative. 29
A careful examination of the legislative history traced earlier in this decision shows that the original VAT law,
Executive Order No. 273, was sought to be amended by ten House bills which finally culminated in House Bill No.
11197, as well as two Senate bills. It is to be noted that the first House Bill No. 253 was filed on July 22, 1992, and
two other House bills followed in quick succession on August 10 and September 9, 1992 before a Senate Resolution,
namely, Senate Res. No. 734, was filed on September 10, 1992 and much later, a Senate Bill proper,viz., Senate Bill
No. 1129 on March 1, 1993. Undoubtedly, therefore, these bills originated or had their start in the House and before
any Senate bill amending the VAT law was filed. In point of time and venue, the conclusion is ineluctable that
Republic Act No. 7716, which is indisputably a revenue measure, originated in the House of Representatives in the
form of House Bill No. 253, the first EVAT bill.
Additionally, the content and substance of the ten amendatory House Bills filed over the roughly one-year period from
July 1992 to August 1993 reenforce the position that these revenue bills, pertaining as they do, to Executive Order No.
273, the prevailing VAT law, originated in the Lower House.
House Bill Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9297, 10012 and 10100 were intended to restructure the
VAT system by exempting or imposing the tax on certain items or otherwise introducing reforms in the mechanics of
implementation. 30 Of these, House Bill No. 9210 was favored with a Presidential certification on the need for its
immediate enactment to meet a public emergency. Easily the most comprehensive, it noted that the revenue
performance of the VAT, being far from satisfactory since the collections have always fallen short of projections, "the
system is rendered inefficient, inequitable and less comprehensive." Hence, the Bill proposed several amendments
designed to widen the tax base of the VAT and enhance its administration. 31
That House Bill No. 11197 being a revenue bill, originated from the Lower House was acknowledged, in fact was
virtually taken for granted, by the Chairmen of the Committee on Ways and Means of both the House of
Representatives and the Senate. Consequently, at the April 19, 1994 meeting of the Bicameral Conference Committee,
the Members agreed to make the House Bill as the "frame of reference" or "base" of the discussions of the Bicameral
Conference Committee with the "amendments" or "insertions to emanate from the Senate." 32
As to whether the bills originated exclusively in the Lower House is altogether a different matter. Obviously, bills
amendatory of VAT did not originate solely in the House to the exclusion of all others for there were P.S. Res. No. 734
filed in the Senate on September 10, 1992 followed by Senate Bill No. 1129 which was filed on March 1, 1993. About
a year later, this was substituted by Senate Bill No. 1630 that eventually became the EVAT law, namely, Republic Act
No. 7716.
Adverting to the passage of the amendatory VAT bills in the Lower House, it is to be noted that House Bill No. 11197
which substituted all the prior bills introduced in said House complied with the required readings, that is, the first
reading consisting of the reading of the title and referral to the appropriate Committee, approval on second reading on
November 11, 1993 and on third reading on November 17, 1993 before being finally transmitted to the Senate. In the
Senate, its identity was preserved and its provisions were taken into consideration when the Senate Committee on
Ways and Means submitted Com. Report No. 349 which recommended for approval "S.B. No. 1630 in substitution of
S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197." At this stage, the subject bill may be
considered to have passed first reading in the Senate with the submission of said Committee Report No. 349 by the
Senate Committee on Ways and Means to which it had been referred earlier. What remained, therefore, was no longer
House Bill No. 11197 but Senate Bill No. 1630. Thence, the Senate, instead of transmitting the bill to the Lower
House for its concurrence and amendments, if any, took a "shortcut," bypassed the Lower House and instead,
approved Senate Bill No. 1630 on both second and third readings on the same day, March 24, 1994.
The first irregularity, that is, the failure to return Senate Bill No. 1630 to the Lower House for its approval is fatal
inasmuch as the other chamber of legislature was not afforded the opportunity to deliberate and make known its
views. It is no idle dictum that no less than the Constitution ordains: "The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives . . ." 33 (Emphasis
supplied)
It is to be pointed out too, that inasmuch as Senate Bill No. 1630 which had "taken into consideration" House Bill No.
11197 was not returned to the Lower House for deliberation, the latter Chamber had no opportunity at all to express its
views thereon or to introduce any amendment. The customary practice is, after the Senate has considered the Lower
House Bill, it returns the same to the House of origin with its amendments. In the event that there may be any
differences between the two, the same shall then be referred to a Conference Committee composed of members from
both Chambers which shall then proceed to reconcile said differences.
In the instant case, the Senate transmitted to the Lower House on March 24, 1994, a letter informing the latter that it
had "passed S. No. 1630
entitled . . . (and) in view of the disagreeing provisions of said bill and House Bill No. 11197, entitled . . . the Senate
requests a conference . . ." This, in spite of the fact that Com. Report No. 349 of the Senate Committee on Ways and
Means had already recommended for approval on February 7, 1994 "S.B. No. 1630 . . . taking into consideration H.B.
No. 11197." Clearly, the Conference Committee could only have acted upon Senate Bill No. 1630, for House Bill No.
11197 had already been fused into the former.
At the oral hearing of July 7, 1994, petitioner in G.R. No. 115455 admitted, in response to this writer's query, that he
had attempted to rectify some of the perceived irregularities by presenting a motion in the Senate to recall the bill
from the Conference Committee so that it could revert to the period of amendment, but he was outvoted, in fact
"slaughtered." 34
In accordance with the Rules of the House of Representatives and the Senate, Republic Act No. 7716 was duly
authenticated after it was signed by the President of the Senate and the Speaker of the House of Representatives
followed by the certifications of the Secretary of the Senate and the Acting Secretary General of the House of
Representatives. 35 With the signature of President Fidel V. Ramos under the words "Approved: 5 May 1994," it was
finally promulgated.
Its legislative journey ended, Republic Act No. 7716 attained the status of an enrolled bill which is defined as one
"which has been duly introduced, finally passed by both houses, signed by the proper officers of each, approved by
the governor (or president) and filed by the secretary of state." 36
Stated differently:
It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus
attested, has received in due form, the sanction of the legislative branch of the government, and that it
is delivered to him in obedience to the constitutional requirement that all bills which pass Congress
shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the
public archives, its authentication as a bill that has passed Congress should be deemed complete and
unimpeachable. As the President has no authority to approve a bill not passed by Congress, an
enrolled Act in the custody of the Secretary of State, and having the official attestations of the
Speaker of the House of Representatives, of the President of the Senate, and of the President of the
United States, carries, on its face, a solemn assurance by the legislative and executive departments of
the government, charged, respectively, with the duty of enacting and executing the laws, that it was
passed by Congress. The respect due to coequal and independent departments requires the judicial
department to act upon that assurance, and to accept, as having passed Congress, all bills
authenticated in the manner stated; leaving the courts to determine, when the question properly
arises, whether the Act, so authenticated, is in conformity with the Constitution. 37
The enrolled bill assumes importance when there is some variance between what actually transpired in the halls of
Congress, as reflected in its journals, and as shown in the text of the law as finally enacted. But suppose the journals
of either or both Houses fail to disclose that the law was passed in accordance with what was certified to by their
respective presiding officers and the President. Or that certain constitutional requirements regarding its passage were
not observed, as in the instant case. Which shall prevail: the journal or the enrolled bill?
A word on the journal.
The journal is the official record of the acts of a legislative body. It should be a true record of the
proceedings arranged in chronological order. It should be a record of what is done rather than what is
said. The journal should be a clear, concise, unembellished statement of all proposals made and all
actions taken complying with all requirements of constitutions, statutes, charters or rules concerning
what is to be recorded and how it is to be recorded. 38
Article VI, Section 16 (4) of the Constitution ordains:
Each house shall keep a Journal of its proceedings, and from time to time publish the same,
excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any
question shall, at the request of one-fifth of the Members present, be entered in the Journal.
Each House shall also keep a Record of its proceedings." (Emphasis supplied)
The rationale behind the above provision and of the "journal entry rule" is as follows:
It is apparent that the object of this provision is to make the legislature show what it has done,
leaving nothing whatever to implication. And, when the legislature says what it has done, with regard
to the passage of any bill, it negatives the idea that it has done anything else in regard thereto. Silence
proves nothing where one is commanded to speak . . . . Our constitution commands certain things to
be done in regard to the passage of a bill, and says that no bill shall become a law unless these things
are done. It seems a travesty upon our supreme law to say that it guaranties to the people the right to
have their laws made in this manner only, and that there is no way of enforcing this right, or for the
court to say that this is law when the constitution says it is not law. There is one safe course which is
 in harmony with the constitution, and that is to adhere to the rule that the legislature must show, as
commanded by the constitution, that it has done everything required by the constitution to be done in
the serious and important matter of making laws. This is the rule of evidence provided by the
constitution. It is not presumptuous in the courts, nor disrespectful to the legislature, to judge the acts
of the legislature by its own evidence. 39
Confronted with a discrepancy between the journal proceedings and the law as duly enacted, courts have indulged in
different theories. The "enrolled bill" and "journal entry" rules, being rooted deep in the Parliamentary practices of
England where there is no written constitution, and then transplanted to the United States, it may be instructive to
examine which rule prevails in the latter country through which, by a process of legislative osmosis, we adopted them
in turn.
There seems to be three distinct and different rules as applicable to the enrolled bill recognized by the
various courts of this country. The first of these rules appears to be that the enrolled bill is the
ultimate proof and exclusive and conclusive evidence that the bill passed the legislature in
accordance with the provisions of the Constitution. Such has been the holding in California, Georgia,
Kentucky, Texas, Washington, New Mexico, Mississippi, Indiana, South Dakota, and may be some
others.
The second of the rules seems to be that the enrolled bill is a verity and resort cannot be had to the
journals of the Legislature to show that the constitutional mandates were not complied with by the
Legislature, except as to those provisions of the Constitution, compliance with which is expressly
required to be shown on the journal. This rule has been adopted in South Carolina, Montana,
Oklahoma, Utah, Ohio, New Jersey, United States Supreme Court, and others.
The third of the rules seems to be that the enrolled bill raises only a prima facie presumption that the
mandatory provisions of the Constitution have been complied with and that resort may be had to the
journals to refute that presumption, and if the constitutional provision is one, compliance with which
is expressly required by the Constitution to be shown on the journals, then the mere silence of the
journals to show a compliance therewith will refute the presumption. This rule has been adopted in
Illinois, Florida, Kansas, Louisiana, Tennessee, Arkansas, Idaho, Minnesota, Nebraska, Arizona,
Oregon, New Jersey, Colorado, and others. 40
In the 1980 case of D & W Auto Supply v. Department of Revenue, the Supreme Court of Kentucky which had
subscribed in the past to the first of the three theories, made the pronouncement that it had shifted its stand and would
henceforth adopt the third. It justified its changed stance, thus:
We believe that a more reasonable rule is the one which Professor Sutherland describes as the
"extrinsic evidence" rule . . . . Under this approach there is a prima facie presumption that an enrolled
bill is valid, but such presumption may be overcome by clear satisfactory and convincing evidence
establishing that constitutional requirements have not been met. 41
What rule, if any, has been adopted in this jurisdiction?
Advocates of the "journal entry rule" cite the 1916 decision in U.S. v. Pons 42 where this Court placed reliance on the
legislative journals to determine whether Act No. 2381 was passed on February 28, 1914 which is what appears in the
Journal, or on March 1, 1914 which was closer to the truth. The confusion was caused by the adjournment sine die at
midnight of February 28, 1914 of the Philippine Commission.
A close examination of the decision reveals that the Court did not apply the "journal entry rule" vis-a-vis the "enrolled
bill rule" but the former as against what are "behind the legislative journals."
Passing over the question of whether the printed Act (No. 2381), published by authority of law, is
conclusive evidence as to the date when it was passed, we will inquire whether the courts may go
behind the legislative journals for the purpose of determining the date of adjournment when such
journals are clear and explicit. 43
It is to be noted from the above that the Court "passed over" the probative value to be accorded to the enrolled bill.
Opting for the journals, the Court proceeded to explain:
 From their very nature and object, the records of the Legislature are as important as those of the
judiciary, and to inquire into the veracity of the journals of the Philippine Legislature, when they are,
as we have said clear and explicit, would be to violate both the letter and the spirit of the organic laws
by which the Philippine Government was brought into existence, to invade a coordinate and
independent department of the Government, and to interfere with the legitimate powers and functions
of the Legislature. 44
Following the courts in the United States since the Constitution of the Philippine Government is modeled after that of
the Federal Government, the Court did not hesitate to follow the courts in said country, i.e., to consider the journals
decisive of the point at issue. Thus: "The journals say that the Legislature adjourned at 12 midnight on February 28,
1914. This settles the question and the court did not err in declining to go behind these journals." 45
The Court made a categorical stand for the "enrolled bill rule" for the first time in the 1947 case of Mabanag v. Lopez
Vito 46 where it held that an enrolled bill imports absolute verity and is binding on the courts. This Court held itself
bound by an authenticated resolution, despite the fact that the vote of three-fourths of the Members of the Congress
(as required by the Constitution to approve proposals for constitutional amendments) was not actually obtained on
account of the suspension of some members of the House of Representatives and the Senate. In this connection, the
Court invoked the "enrolled bill rule" in this wise: "If a political question conclusively binds the judges out of respect
to the political departments, a duly certified law or resolution also binds the judges under the 'enrolled bill rule' born
of that respect." 47
Mindful that the U.S. Supreme Court is on the side of those who favor the rule and for no other reason than that it
conforms to the expressed policy of our law making body (i.e., Sec. 313 of the old Code of Civil Procedure, as
amended by Act No. 2210), the Court said that "duly certified copies shall be conclusive proof of the provisions of
such Acts and of the due enactment thereof." Without pulling the legal underpinnings from U.S. v. Pons, it justified its
position by saying that if the Court at the time looked into the journals, "in all probability, those were the documents
offered in evidence" and that "even if both the journals and authenticated copy of the Act had been presented, the
disposal of the issue by the Court on the basis of the journals does not imply rejection of the enrolled theory; for as
already stated, the due enactment of a law may be proved in either of the two ways specified in Section 313 of Act No.
190 as amended." 48 Three Justices voiced their dissent from the majority decision.
Again, the Court made its position plain in the 1963 case of Casco Philippine Chemical Co., Inc. v. Gimenez 49when a
unanimous Court ruled that: "The enrolled bill is conclusive upon the courts as regards the tenor of the measure
passed by Congress and approved by the President. If there has been any mistake in the printing of a bill before it was
certified by the officers of Congress and approved by the Executive, the remedy is by amendment or curative
legislation not by judicial decree." According to Webster's New 20th Century Dictionary, 2nd ed., 1983, the word
"tenor" means, among others, "the general drift of something spoken or written; intent, purport, substance."
Thus, the Court upheld the respondent Auditor General's interpretation that Republic Act No. 2609 really exempted
from the margin fee on foreign exchange transactions "urea formaldehyde" as found in the law and not "urea and
formaldehyde" which petitioner insisted were the words contained in the bill and were so intended by Congress.
In 1969, the Court similarly placed the weight of its authority behind the conclusiveness of the enrolled bill. In
denying the motion for reconsideration, the Court ruled in Morales v. Subido that "the enrolled Act in the office of the
legislative secretary of the President of the Philippines shows that Section 10 is exactly as it is in the statute as
officially published in slip form by the Bureau of Printing . . . Expressed elsewise, this is a matter worthy of the
attention not of an Oliver Wendell Holmes but of a Sherlock Holmes." 50 The alleged omission of a phrase in the final
Act was made, not at any stage of the legislative proceedings, but only in the course of the engrossment of the bill,
more specifically in the proofreading thereof.
But the Court did include a caveat that qualified the absoluteness of the "enrolled bill" rule stating:
By what we have essayed above we are not of course to be understood as holding that in all cases the
journals must yield to the enrolled bill. To be sure there are certain matters which the Constitution
(Art. VI, secs. 10 [4], 20 [1], and 21 [1]) expressly requires must be entered on the journal of each
house. To what extent the validity of a legislative act may be affected by a failure to have such
matters entered on the journal, is a question which we do not now decide (Cf. e.g., Wilkes Country
Comm'rs. v. Coler, 180 U.S. 506 [1900]). All we hold is that with respect to matters not expressly
required to be entered on the journal, the enrolled bill prevails in the event of any discrepancy. 51
More recently, in the 1993 case of Philippine Judges Association v. Prado, 52 this Court, in ruling on the
unconstitutionality of Section 35 of Republic Act No. 7354 withdrawing the franking privilege from the entire
hierarchy of courts, did not so much adhere to the enrolled bill rule alone as to both "enrolled bill and legislative
journals." Through Mr. Justice Isagani A. Cruz, we stated: "Both the enrolled bill and the legislative journals certify
that the measure was duly enacted, i.e., in accordance with Article VI, Sec. 26(2) of the Constitution. We are bound by
such official assurances from a coordinate department of the government, to which we owe, at the very least, a
becoming courtesy."
Aware of the shifting sands on which the validity and continuing relevance of the "enrolled bill" theory rests, I have
taken pains to trace the history of its applicability in this jurisdiction, as influenced in varying degrees by different
Federal rulings.
As applied to the instant petition, the issue posed is whether or not the procedural irregularities that attended the
passage of House Bill No. 11197 and Senate Bill No. 1630, outside of the reading and printing requirements which
were exempted by the Presidential certification, may no longer be impugned, having been "saved" by the
conclusiveness on us of the enrolled bill. I see no cogent reason why we cannot continue to place reliance on the
enrolled bill, but only with respect to matters pertaining to the procedure followed in the enactment of bills in
Congress and their subsequent engrossment, printing errors, omission of words and phrases and similar relatively
minor matters relating more to form and factual issues which do not materially alter the essence and substance of the
law itself.
Certainly, "courts cannot claim greater ability to judge procedural legitimacy, since constitutional rules on legislative
procedure are easily mastered. Procedural disputes are over facts — whether or not the bill had enough votes, or three
readings, or whatever — not over the meaning of the constitution. Legislators, as eyewitnesses, are in a better position
than a court to rule on the facts. The argument is also made that legislatures would be offended if courts examined
legislative procedure. 53
Such a rationale, however, cannot conceivably apply to substantive changes in a bill introduced towards the end of its
tortuous trip through Congress, catching both legislators and the public unawares and altering the same beyond
recognition even by its sponsors.
This issue I wish to address forthwith.
EXTENT OF THE POWER OF THE BICAMERAL CONFERENCE COMMITTEE
One of the issues raised in these petitions, especially in G.R. Nos. 115781, 115543 and 115754, respectively, is
whether or not —
Congress violated Section 26, par. 2, Article VI (of the 1987 Constitution) when it approved the
Bicameral Conference Committee Report which embodied, in violation of Rule XII of the Rules of
the Senate, a radically altered tax measure containing provisions not reported out or discussed in
either House as well as provisions on which there was no disagreement between the House and the
Senate and, worse, provisions contrary to what the House and the Senate had approved after three
separate readings. 54
and
By adding or deleting provisions, when there was no conflicting provisions between the House and
Senate versions, the BICAM acted in excess of its jurisdiction or with such grave abuse of discretion
as to amount to loss of jurisdiction. . . . In adding to the bill and thus subjecting to VAT, real
properties, media and cooperatives despite the contrary decision of both Houses, the BICAM
exceeded its jurisdiction or acted with such abuse of discretion as to amount to loss of jurisdiction. . .
.55
I wish to consider this issue in light of Article VIII, Sec. 1 of the Constitution which provides that "(j)udicial power
includes the duty of the courts of justice . . . to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." We are
also guided by the principle that a court may interfere with the internal procedures of its coordinate branch only to
uphold the Constitution. 56
A conference committee has been defined:
 . . . unlike the joint committee is two committees, one appointed by each house. It is normally
appointed for a specific bill and its function is to gain accord between the two houses either by the
recession of one house from its bill or its amendments or by the further amendment of the existing
legislation or by the substitution of an entirely new bill. Obviously the conference committee is
always a special committee and normally includes the member who introduced the bill and the
chairman of the committee which considered it together with such other representatives of the house
as seem expedient. (Horack, Cases and Materials on Legislation [1940] 220. See also Zinn,
Conference Procedure in Congress, 38 ABAJ 864 [1952]; Steiner, The Congressional Conference
Committee [U of III. Press,
1951]). 57
From the foregoing definition, it is clear that a bicameral conference committee is a creature, not of the Constitution,
but of the legislative body under its power to determine rules of its proceedings under Article VI, Sec. 16 (3) of the
Constitution. Thus, it draws its life and vitality from the rules governing its creation. The why, when, how and
wherefore of its operations, in other words, the parameters within which it is to function, are to be found in Section
26, Rule XII of the Rules of the Senate and Section 85 of the Rules of the House of Representatives, respectively,
which provide:
Rule XII, Rules of the Senate
Sec. 26. In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference committee of
both Houses which shall meet within ten days after their composition.
The President shall designate the members of the conference committee in accordance with
subparagraph (c), Section 8 of Rule III.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in or amendments to the subject measure, and shall be signed by the conferees.
The consideration of such report shall not be in order unless the report has been filed with the
Secretary of the Senate and copies thereof have been distributed to the Members.
Rules of the House of Representatives
Sec. 85. Conference Committee Reports. — In the event that the House does not agree with the
Senate on the amendments to any bill or joint resolution, the differences may be settled by conference
committee of both Chambers.
The consideration of conference committee reports shall always be in order, except when the journal
is being read, while the roll is being called or the House is dividing on any question. Each of the
pages of such reports shall contain a detailed, sufficiently explicit statement of the changes in or
amendments to the subject measure.
The consideration of such report shall not be in order unless copies thereof are distributed to the
Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient
that three copies of the report, signed as above provided, are deposited in the office of the Secretary
General.
Under these Rules, a bicameral conference committee comes into being only when there are disagreements and
differences between the Senate and the House with regard to certain provisions of a particular legislative act which
have to be reconciled.
Jefferson's Manual, which, according to Section 112, Rule XLIX of the Senate Rules, supplements it, states that a
conference committee is usually called "on the occasion of amendments between the Houses" and "in all cases of
difference of opinion between the two House on matters pending between
them." 58 It further states:
The managers of a conference must confine themselves to the differences committed to them, and may not include
subjects not within the disagreements, even though germane to a question in issue. But they may perfect amendments
committed to them if they do not in so doing go beyond the differences. . . . Managers may not change the text to
which both Houses have agreed. 59 (Emphasis supplied.)
Mason's Manual of Legislative Procedures which is also considered as controlling authority for any situation not
covered by a specific legislative
rule, 60 states that either House may "request a conference with the other on any matter of difference or dispute
between them" and that in such a request, "the subject of the conference should always be stated." 61
In the Philippines, as in the United States, the Conference Committee exercises such a wide range of authority that
they virtually constitute a third House in the Legislature. As admitted by the Solicitor General, "It was the practice in
past Congresses for Conference Committees to insert in bills approved by the two Houses new provisions that were
not originally contemplated by them." 62
In Legislative Procedure, Robert Luce gives a graphic description of the milieu and the circumstances which have
conspired to transform an initially innocuous mechanism designed to facilitate action into an all-powerful
Frankenstein that brooks no challenge to its authority even from its own members.
Their power lies chiefly in the fact that reports of conference committees must be accepted without
amendment or else rejected in toto. The impulse is to get done with the matters and so the motion to
accept has undue advantage, for some members are sure to prefer swallowing unpalatable provisions
rather than prolong controversy. This is the more likely if the report comes in the rush of business
toward the end of a session, when to seek further conference might result in the loss of the measure
altogether. At any time in the session there is some risk of such a result following the rejection of a
conference report, for it may not be possible to secure a second conference, or delay may give
opposition to the main proposal chance to develop more strength.
xxx xxx xxx
Entangled in a network of rule and custom, the Representative who resents and would resist this theft
of his rights, finds himself helpless. Rarely can he vote, rarely can he voice his mind, in the matter of
any fraction of the bill. Usually he cannot even record himself as protesting against some one feature
while accepting the measure as whole. Worst of all, he cannot by argument or suggested change, try
to improve what the other branch has done.
This means more than the subversion of individual rights. It means to a degree the abandonment of
whatever advantage the bicameral system may have. By so much it in effect transfers the lawmaking
power to a small group of members who work out in private a decision that almost always prevails.
What is worse, these men are not chosen in a way to ensure the wisest choice. It has become the
practice to name as conferees the ranking members of the committee, so that the accident of seniority
determines. Exceptions are made, but in general it is not a question of who are most competent to
serve. Chance governs, sometimes giving way to favor, rarely to merit.
xxx xxx xxx
Speaking broadly, the system of legislating by conference committee is unscientific and therefore
defective. Usually it forfeits the benefit of scrutiny and judgment by all the wisdom available.
Uncontrolled, it is inferior to that process by which every amendment is secured independent
discussion and vote. . . . 63 (Emphasis supplied)
Not surprisingly has it been said: "Conference Committee action is the most undemocratic procedure in the legislative
process; it is an appropriate target for legislative critics." 64
In the case at bench, petitioners insist that the Conference Committee to which Senate Bill No. 1630 and House Bill
No. 11197 were referred for the purpose of harmonizing their differences, overreached themselves in not confining
their "reconciliation" function to those areas of disagreement in the two bills but actually making "surreptitious
insertions" and deletions which amounted to a grave abuse of discretion.
At this point, it becomes imperative to focus on the errant provisions which found their way into Republic Act No.
7716. Below is a breakdown to facilitate understanding the grounds for petitioners' objections:
INSERTIONS MADE BY BICAMERAL CONFERENCE COMMITTEE (BICAM) TO SENATE BILL (SB)
NO. 1630 AND HOUSE BILL (HB) NO. 11197
1. Sec. 99 of the National Internal Revenue Code (NIRC)
(1) Under the HB, this section includes any person who, in the course of trade or business, sells, barters or exchanges
goods OR PROPERTIES and any person who LEASES PERSONAL PROPERTIES.
(2) The SB completely changed the said section and defined a number of words and phrases. Also, Section 99-A was
added which included one who sells, exchanges, barters PROPERTIES and one who imports PROPERTIES.
(3) The BICAM version makes LESSORS of goods OR PROPERTIES and importers of goods LIABLE to VAT
(subject of petition in G.R. No. 115754).
2. Section 100 (VAT on Sale of Goods)
The term "goods" or "properties" includes the following, which were not found in either the HB or the SB:
— In addition to radio and television time; SATTELITE TRANSMISSION AND CABLE
TELEVISION TIME.
— The term "Other similar properties" was deleted, which was present in the HB and the SB.
— Real properties held primarily for sale to customers or held for lease in the ordinary course or
business were included, which was neither in the HB nor the SB (subject of petition in G.R. No.
115754).
3. Section 102
On what are included in the term "sale or exchange of services," as to make them subject to VAT, the BICAM
included/inserted the following (not found in either House or Senate Bills):
1. Services of lessors of property, whether personal or real (subject of petition in G.R. No. 115754);
2. Warehousing services;
3. Keepers of resthouses, pension houses, inns, resorts;
4. Common carriers by land, air and sea;
5. Services of franchise grantees of telephone and telegraph;
6. Radio and television broadcasting;
7. All other franchise grantees except those under Section 117 of this Code (subject of petition in G.R.
No. 115852);
8. Services of surety, fidelity, indemnity, and bonding companies;
9. Also inserted by the BICAM (on page 8 thereof) is the lease or use of or the right to use of satellite
transmission and cable television time.
4. Section 103 (Exempt Transactions)
The BICAM deleted subsection (f) in its entirety, despite its inclusion in both the House and Senate Bills. Therefore,
under Republic Act No. 7716, the "printing, publication, importation or sale of books and any newspaper, magazine,
review, or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is not
devoted principally to the publication of advertisements" is subject to VAT (subject of petition in G.R. No. 115931 and
G.R. No. 115544).
The HB and SB did not touch Subsection (g) but it was amended by the BICAM by changing the word TEN to FIVE.
Thus, importation of vessels with tonnage of more than five thousand tons is VAT exempt.
Subsection L, which was identical in the HB and the SB that stated that medical, dental, hospital and veterinary
services were exempted from the VAT was amended by the BICAM by adding the qualifying phrase: EXCEPT
THOSE RENDERED BY PROFESSIONALS, thus subjecting doctors, dentists and veterinarians to the VAT.
Subsection U which exempts from VAT "transactions which are exempt under special laws," was amended by the
BICAM by adding the phrase: EXCEPT THOSE GRANTED UNDER PD Nos. 66, 529, 972, 1491, AND 1590, AND
NON-ELECTRIC COOPERATIVES UNDER RA 6938 (subject of petition in G.R. No. 115873), not found in either
the HB or the SB, resulting in the inclusion of all cooperatives to the VAT, except non-electric cooperatives.
The sale of real properties was included in the exempt transactions under the House Bill, but the BICAM qualified
this with the provision:
(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO CUSTOMERS OR
HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE OR BUSINESS OR REAL
PROPERTY UTILIZED FOR LOW-COST AND SOCIALIZED HOUSING AS DEFINED BY RA
NO. 7279 OTHERWISE KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OF
1992 AND OTHER RELATED LAWS. (subject of petition in G.R. No. 115754)
The BICAM also exempted the sale of properties, the receipts of which are not less than P480,000.00 or more than
P720,000.00. Under the SB, no amount was given, but in the HB it was stated that receipts from the sale of properties
not less than P350,000.00 nor more than P600,000.00 were exempt.
It did not include, as VAT exempt, the sale or transfer of securities, as defined in the Revised Securities Act (BP 178)
which was contained in both Senate and House Bills.
5. Section 104
Not included in the HB or the SB is the phrase "INCLUDING PACKAGING MATERIALS" which was inserted by
the BICAM in Section 104 (A) (1) (B), thus excluding from creditable input tax packaging materials and the phrase
"ON WHICH A VALUE-ADDED TAX HAS BEEN ACTUALLY PAID" in Section 104 (A) (2).
6. Section 107
Both House and Senate Bills provide for the payment of P500.00 VAT registration fee but this was increased by
BICAM to P1,000.00.
7. Section 112
Regarding a person whose sales or receipts are exempt under Section 103 (w), the BICAM inserted the phrase:
"THREE PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO YEARS
THEREAFTER," although the SB and the HB provide only "three percent of his gross quarterly sales."
8. Section 115
The BICAM adopted the HB version which subjects common carriers by land, air or water for the transport of
passengers to 3% of their gross quarterly sales, which is not found in the SB.
9. Section 117
The BICAM amended this section by subjecting franchises on electric, gas and water utilities to a tax of two percent
(2%) on gross receipts
derived . . ., although neither the HB nor the SB has a similar provision.
10. Section 17 (d)
(a) The BICAM defers for only 2 years the VAT on services of actors and actresses, although the SB defers it for 3
years.
(b) The BICAM uses the word "EXCLUDE" in the section on deferment of VAT collection on certain goods and
services. The HB does not contain any counterpart provision and SB only allows deferment for no longer than 3 years.
11. Section 18 on the Tax Administration Development Fund is an entirely new provision not contained in the
House/Senate Bills. This fund is supposed to ensure effective implementation of Republic Act No. 7716.
12. Section 19
No period within which to promulgate the implementing rules and regulations is found in the HB or the SB but
BICAM provided "within 90 days" which found its way in Republic Act No. 7716.
Even a cursory perusal of the above outline will convince one that, indeed, the Bicameral Conference Committee
(henceforth to be referred to as BICAM) exceeded the power and authority granted in the Rules of its creation. Both
Senate and House Rules limit the task of the Conference Committee in almost identical language to the settlement of
differences in the provisions or amendments to any bill or joint resolution. If it means anything at all, it is that there
are provisions in subject bill, to start with, which differ and, therefore, need reconciliation. Nowhere in the Rules is it
authorized to initiate or propose completely new matter. Although under certain rules on legislative procedure, like
those in Jefferson's Manual, a conference committee may introduce germane matters in a particular bill, such matters
should be circumscribed by the committee's sole authority and function to reconcile differences.
Parenthetically, in the Senate and in the House, a matter is "germane" to a particular bill if there is a common tie
between said matter and the provisions which tend to promote the object and purpose of the bill it seeks to amend. If it
introduces a new subject matter not within the purview of the bill, then it is not "germane" to the bill. 65 The test is
whether or not the change represented an amendment or extension of the basic purpose of the original, or the
introduction of an entirely new and different subject matter. 66
In the BICAM, however, the germane subject matter must be within the ambit of the disagreement between the two
Houses. If the "germane" subject is not covered by the disagreement but it is reflected in the final version of the bill as
reported by the Conference Committee or, if what appears to be a "germane" matter in the sense that it is "relevant or
closely allied" 67 with the purpose of the bill, was not the subject of a disagreement between the Senate and the House,
it should be deemed an extraneous matter or even a "rider" which should never be considered legally passed for not
having undergone the three-day reading requirement. Insertion of new matter on the part of the BICAM is, therefore,
an ultra vires act which makes the same void.
The determination of what is "germane" and what is not may appear to be a difficult task but the Congress, having
been confronted with the problem before, resolved it in accordance with the rules. In that case, the Congress approved
a Conference Committee's insertion of new provisions that were not contemplated in any of the provisions in question
between the Houses simply because of the provision in Jefferson's Manual that conferees may report matters "which
are germane modifications of subjects in disagreement between the Houses and the committee. 68 In other words, the
matter was germane to the points of disagreement between the House and the Senate.
As regards inserted amendments in the BICAM, therefore, the task of determining what is germane to a bill is
simplified, thus: If the amendments are not circumscribed by the subjects of disagreement between the two Houses,
then they are not germane to the purpose of the bill.
In the instant case before us, the insertions and deletions made do not merely spell an effort at settling conflicting
provisions but have materially altered the bill, thus giving rise to the instant petitions on the part of those who were
caught unawares by the legislative legerdemain that took place. Going by the definition of the word "amendment" in
Black's Law Dictionary, 5th Ed., 1979, which means "to change or modify for the better; to alter by modification,
deletion, or addition," said insertions and deletions constitute amendments. Consequently, these violated Article VI,
Section 26 (2) which provides inter alia: "Upon the last reading of a bill, no amendment thereto shall be
allowed . . ." This proscription is intended to subject all bills and their amendments to intensive deliberation by the
legislators and the ample ventilation of issues to afford the public an opportunity to express their opinions or
objections issues to afford the public an opportunity to express their opinions or objections thereon. The same
rationale underlies the three-reading requirement to the end that no surprises may be sprung on an unsuspecting
citizenry.
Provisions of the "now you see it, now you don't" variety, meaning those which were either in the House and/or
Senate versions but simply disappeared or were "bracketed out" of existence in the BICAM Report, were eventually
incorporated in Republic Act No. 7716. Worse, some goods, properties or services which were not covered by the two
versions and, therefore, were never intended to be so covered, suddenly found their way into the same Report. No
advance notice of such insertions prepared the rest of the legislators, much less the public who could be adversely
affected, so that they could be given the opportunity to express their views thereon. Well has the final BICAM report
been described, therefore, as an instance of "taxation without representation."
That the conferees or delegates in the BICAM representing the two Chambers could not possibly be charged with bad
faith or sinister motives or, at the very least, unseemly behavior, is of no moment. The stark fact is that items not
previously subjected to the VAT now fell under its coverage without interested sectors or parties having been afforded
the opportunity to be heard thereon. This is not to say that the Conference Committee Report should have undergone
the three readings required in Article VI, Section 26 (2), for this clearly refers only to bills which, after having been
initially filed in either House, negotiated the labyrinthine passage therein until its approval. The composition of the
BICAM including as it usually does, the Chairman of the appropriate Committee, the sponsor of the bill and other
interested members ensures an informed discussion, at least with respect to the disagreeing provisions. The same does
not obtain as regards completely new matter which suddenly spring on the legislative horizon.
It has been pointed out that such extraneous matters notwithstanding, all Congressman and Senators were given the
opportunity to approve or turn down the Committee Report in toto, thus "curing" whatever defect or irregularity it
bore.
Earlier in this opinion, I explained that the source of the acknowledged power of this ad hoc committee stems from
the precise fact that, the meetings, being scheduled "take it or leave it" basis. It has not been uncommon for legislators
who, for one reason or another have been frustrated in their attempt to pass a pet bill in their own chamber, to work for
its passage in the BICAM where it may enjoy a more hospitable reception and faster approval. In the instant case, had
there been full, open and unfettered discussion on the bills during the Committee sessions, there would not have been
as much vociferous objections on this score. Unfortunately, however, the Committee held two of the five sessions
behind closed doors, sans stenographers, record-takers and interested observers. To that extent, the proceedings were
shrouded in mystery and the public's right to information on matters of public concern as enshrined in Article III,
Section 7 69 and the government's policy of transparency in transactions involving public interest in Article II, Section
28 of the
Constitution 70 are undermined.
Moreover, that which is void ab initio such as the objectionable provisions in the Conference Committee Report,
cannot be "cured" or ratified. For all intents and purposes, these never existed. Quae ab initio non valent, ex post facto
convalescere non possunt. Things that are invalid from the beginning are not made valid by a subsequent act.
Should this argument be unacceptable, the "enrolled bill" doctrine, in turn, is invoked to support the proposition that
the certification by the presiding officers of Congress, together with the signature of the President, bars further judicial
inquiry into the validity of the law. I reiterate my submission that the "enrolled bill ruling" may be applicable but only
with respect to questions pertaining to the procedural enactment, engrossment, printing, the insertion or deletion of a
word or phrase here and there, but would draw a dividing line with respect to substantial substantive changes, such as
those introduced by the BICAM herein.
We have before us then the spectacle of a body created by the two Houses of Congress for the very limited purpose of
settling disagreements in provisions between bills emanating therefrom, exercising the plenary legislative powers of
the parent chambers but holding itself exempt from the mandatory constitutional requirements that are the hallmarks
of legislation under the aegis of a democratic political system. From the initial filing, through the three readings which
entail detailed debates and discussions in Committee and plenary sessions, and on to the transmittal to the other House
in a repetition of the entire process to ensure exhaustive deliberations — all these have been skipped over. In the
proverbial twinkling of an eye, provisions that probably may not have seen the light of day had they but run their full
course through the legislative mill, sprang into existence and emerged full-blown laws.
Yet our Constitution vests the legislative power in "the Congress of the Philippines which shall consist of a Senate and
a House of
Representatives . . ." 71 and not in any special, standing or super committee of its own creation, no matter that these
have been described, accurately enough, as "the eye, the ear, the hand, and very often the brain of the house."
Firstly, that usage or custom has sanctioned this abbreviated, if questionable, procedure does not warrant its being
legitimized and perpetuated any longer. Consuetudo, contra rationem introducta, potius usurpatio quam consuetudo
appellari debet. A custom against reason is rather an usurpation. In the hierarchy of sources of legislative procedure,
constitutional rules, statutory provisions and adopted rules (as for example, the Senate and House Rules), rank
highest, certainly much ahead of customs and usages.
Secondly, is this Court to assume the role of passive spectator or indulgent third party, timorous about exercising its
power or more importantly, performing its duty, of making a judicial determination on the issue of whether there has
been grave abuse of discretion by the other branches or instrumentalities of government, where the same is properly
invoked? The time is past when the Court was not loathe to raise the bogeyman of the political question to avert a
head-on collision with either the Executive or Legislative Departments. Even the separation of powers doctrine was
burnished to a bright sheen as often as it was invoked to keep the judiciary within bounds. No longer does this
condition obtain. Article VIII, Section 2 of the Constitution partly quoted in this paragraph has broadened the scope of
judicial inquiry. This Court can now safely fulfill its mandate of delimiting the powers of co-equal departments like
the Congress, its officers or its committees which may have no compunctions about exercising legislative powers in
full.
Thirdly, dare we close our eyes to the presumptuous assumption by a runaway committee of its progenitor's legislative
powers in derogation of the rights of the people, in the process, subverting the democratic principles we all are sworn
to uphold, when a proper case is made out for our intervention? The answers to the above queries are self-evident.
I call to mind this exhortation: "We are sworn to see that violations of the constitution — by any person, corporation,
state agency or branch of government — are brought to light and corrected. To countenance an artificial rule of law
that silences our voices when confronted with violations of our Constitution is not acceptable to this Court." 72
I am not unaware that a rather recent decision of ours brushed aside an argument that a provision in subject law
regarding the withdrawal of the franking privilege from the petitioners and this Court itself, not having been included
in the original version of Senate Bill No. 720 or of House Bill No. 4200 but only in the Conference Committee
Report, was violative of Article VI, Section 26 (2) of the Constitution. Likewise, that said Section 35, never having
been a subject of disagreement between both Houses, could not have been validly added as an amendment before the
Conference Committee.
The majority opinion in said case explained:
While it is true that a conference committee is the mechanism for compromising differences between the Senate and
the House, it is not limited in its jurisdiction to this question. Its broader function is described thus:
A conference committee may deal generally with the subject matter or it may be limited to resolving
the precise differences between the two houses. Even where the conference committee is not by rule
limited in its jurisdiction, legislative custom severely limits the freedom with which new subject
matter can be inserted into the conference bill. But occasionally a conference committee produces
unexpected results, results beyond its mandate. These excursions occur even where the rules impose
strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian
power of conference committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p.
81). 73(Emphasis supplied)
At the risk of being repetitious, I wish to point out that the general rule, as quoted above, is: "Even where the
conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with
which new subject matter can be inserted into the conference bill." What follows, that is, "occasionally a conference
committee produces unexpected results, results beyond its mandate. . ." is the exception. Then it concludes with a
declaration that: "This is symptomatic of the authoritarian power of conference committee." Are we about to reinstall
another institution that smacks of authoritarianism which, after our past experience, has become anathema to the
Filipino people?
The ruling above can hardly be cited in support of the proposition that a provision in a BICAM report which was not
the subject of differences between the House and Senate versions of a bill cannot be nullified. It submit that such is
not authorized in our Basic Law. Moreover, this decision concerns merely one provision whereas the BICAM Report
that culminated in the EVAT law has a wider scope as it, in fact, expanded the base of the original VAT law by
imposing the tax on several items which were not so covered prior to the EVAT.
One other flaw in most BICAM Reports, not excluding this one under scrutiny, is that, hastily drawn up, it often fails
to conform to the Senate and House Rules requiring no less than a "detailed" and "sufficiently explicit statement of the
changes in or amendments to the subject measure." The Report of the committee, as may be gleaned from the
preceding pages, was no more than the final version of the bill as "passed" by the BICAM. The amendments or
subjects of dissension, as well as the reconciliation made by the committee, are not even pointed out, much less
explained therein.
It may be argued that legislative rules of procedure may properly be suspended, modified, revoked or waived at will
by the legislators themselves. 74 This principle, however, does not come into play in interpreting what the record of the
proceedings shows was, or was not, done. It is rather designed to test the validity of legislative action where the record
shows a final action in violation or disregard of legislative rules. 75 Utilizing the Senate and the House Rules as both
guidelines and yardstick, the BICAM here obviously did not adhere to the rule on what the Report should contain.
Given all these irregularities that have apparently been engrafted into the BICAM system, and which have been
tolerated, if not accorded outright acceptance by everyone involved in or conversant with, the institution, it may be
asked: Why not leave well enough alone?
That these practices have remained unchallenged in the past does not justify our closing our eyes and turning a deaf
ear to them. Writ large is the spectacle of a mechanism ensconced in the very heart of the people's legislative halls,
that now stands indicted with the charge of arrogating legislative powers unto itself through the use of dubious
"shortcuts." Here, for the people to judge, is the "mother of all shortcuts."
In the petitions at bench, we are confronted with the enactment of a tax law which was designed to broaden the tax
base. It is rote learning for any law student that as an attribute of sovereignty, the power to tax is "the strongest of all
the powers of government." 76 Admittedly, "for all its plenitude, the power to tax is not unconfined. There are
restrictions." 77 Were there none, then the oft-quoted 1803 dictum of Chief Justice Marshall that "the power to tax
involves the power to destroy" 78 would be a truism. Happily, we can concur with, and the people can find comfort in,
the reassuring words of Mr. Justice Holmes: "The power to tax is not the power to destroy while this Court sits."79
Manakanaka, mayroong dumudulog dito sa Kataastaasang Hukuman na may kamangha-manghang hinaing. Angkop
na halimbawa ay ang mga petisyong iniharap ngayon sa amin.
Ang ilan sa kanila ay mga Senador na nais mapawalang bisa ang isang batas ukol sa buwis na ipinasa mismo nila.
Diumano ito ay hindi tumalima sa mga itinatadhana ng Saligang Batas. Bukod sa rito, tutol sila sa mga bagong talata
na isiningit ng "Bicameral Conference Committee" na nagdagdag ng mga bagong bagay bagay at serbisyo na
papatawan ng buwis. Ayon sa kanila, ginampanan ng komiteng iyan ang gawain na nauukol sa buong Kongreso. Kung
kaya't ang nararapat na mangyari ay ihatol ng Kataastaasang Hukuman na malabis na pagsasamantala sa sariling
pagpapasiya ang ginawa ng Kongreso.
Bagama't bantulot kaming makialam sa isang kapantay na sangay ng Pamahalaan, hindi naman nararapat na kami ay
tumangging gampanan ang tungkulin na iniatas sa amin ng Saligang Batas. Lalu't-lalo nang ang batas na kinauukulan
ay maaaring makapinsala sa nakararami sa sambayanan.
Sa ganang akin, itong batas na inihaharap sa amin ngayon, ay totoong labag sa Saligang Batas, samakatuwid ay
walang bisa. Nguni't ito ay nauukol lamang sa mga katiwalian na may kinalaman sa paraan ng pagpapasabatas nito.
Hindi namin patakaran ang makialam o humadlang sa itinakdang gawain ng Saligang Batas sa Pangulo at sa
Kongreso. Ang dalawang sangay na iyan ng Pamahalaan ang higit na maalam ukol sa kung ang anumang panukalang
batas ay nararapat, kanais-nais o magagampanan; kung kaya't hindi kami nararapat na maghatol o magpapasiya sa
mga bagay na iyan. Ang makapapataw ng angkop na lunas sa larangan na iyan ay ang mismong mga kinatawan ng
sambayanan sa Kongreso.
Faced with this challenge of protecting the rights of the people by striking down a law that I submit is unconstitutional
and in the process, checking the wonted excesses of the Bicameral Conference Committee system, I see in this case a
suitable vehicle to discharge the Court's Constitutional mandate and duty of declaring that there has indeed been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Legislature.
Republic Act No. 7716, being unconstitutional and void, I find no necessity to rule on the substantive issues as dealt
with in the majority opinion as they have been rendered moot and academic. These issues pertain to the intrinsic
merits of the law. It is axiomatic that the wisdom, desirability and advisability of enacting certain laws lie, not within
the province of the Judiciary but that of the political departments, the Executive and the Legislative. The relief sought
by petitioners from what they perceive to be the harsh and onerous effect of the EVAT on the people is within their
reach. For Congress, of which Senator-petitioners are a part, can furnish the solution by either repealing or amending
the subject law.
For the foregoing reasons, I VOTE to GRANT the petition.

PUNO, J.:
Petitioners plead that we affirm the self-evident proposition that they who make law should not break the law. There
are many evils whose elimination can be trusted to time. The evil of lawlessness in lawmaking cannot. It must be slain
on sight for it subverts the sovereignty of the people.
First, a fast snapshot of the facts. On November 17, 1993, the House of Representatives passed on third reading House
Bill (H.B.) No. 11197 entitled "An Act Restructuring the Value Added Tax (VAT) System to Widen its Tax Base and
Enhance its Administration, Amending for These Purposes Sections 99, 100, 102 to 108 and 110 Title V and 236, 237
and 238 of Title IX, and Repealing Sections 113 and 114 of Title V, all of the National Internal Revenue Code as
Amended." The vote was 114 Yeas and 12 Nays. The next day, November 18, 1993, H.B. No. 11197 was transmitted
to the Senate for its concurrence by the Hon. Camilo L. Sabio, Secretary General of the House of Representatives.
On February 7, 1994, the Senate Committee on Ways and Means submitted Senate Bill (S.B.) No. 1630,
recommending its approval "in substitution of Senate Bill No. 1129 taking into consideration P.S. Res. No. 734 and
House Bill No. 11197." On March 24, 1994, S.B. No. 1630 was approved on second and third readings. On the same
day, the Senate, thru Secretary Edgardo E. Tumangan, requested the House for a conference "in view of the
disagreeing provisions of S.B. No. 1630 and H.B. No. 11197." It designated the following as members of its
Committee: Senators Ernesto F. Herrera, Leticia R. Shahani, Alberto S. Romulo, John H. Osmeña, Ernesto M.
Maceda, Blas F. Ople, Francisco S. Tatad, Rodolfo G. Biazon, and Wigberto S. Tañada. On the part of the House, the
members of the Committee were: Congressmen Exequiel B. Javier, James L. Chiongbian, Renato V. Diaz, Arnulfo P.
Fuentebella, Mariano M. Tajon, Gregorio Andolong, Thelma Almario, and Catalino Figueroa. After five (5)
meetings, 1 the Bicameral Conference Committee submitted its Report to the Senate and the House stating:
CONFERENCE COMMITTEE REPORT
The Conference Committee on the disagreeing provisions of House Bill No. 11197, entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116
OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND
114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED
and Senate Bill No. 1630 entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 106, 107, 108 AND 110 OF TITLE IV, 112, 115, 117 AND 121
OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114,
116, 119 AND 120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES
having met, after full and free conference, has agreed to recommend and do hereby recommend to
their respective Houses that House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the
conferees.
Approved.
The Report was approved by the House on April 27, 1994. The Senate approved it on May 2, 1994. On May 5, 1994,
the President signed the bill into law as R.A. No. 7716.
There is no question that the Bicameral Conference Committee did more than reconcile differences between House
Bill No. 11197 and Senate Bill No. 1630. In several instances, it either added new provisions or deleted provisions
already approved in House Bill No. 11197 and Senate Bill No. 1630. These insertions/deletions numbering twenty
four (24) are specified in detail by petitioner Tolentino as follows: 2
SOME SALIENT POINTS ON THE
(AMENDMENTS TO THE VATE LAW [EO 273])
SHOWING ADDITIONS/INSERTIONS MADE BY BICAMERAL
CONFERENCE COMMITTEE TO SB 1630 & HB 11197
I On Sec. 99 of the NIRC
H.B. 11197 amends this section by including, as liable to VAT, any person who in the course of trade
of business, sells, barters, or exchanges goods or PROPERTIES and any person who LEASES
PERSONAL PROPERTIES.
Senate Bill 1630 deleted Sec. 99 to give way for a new Section 99 — DEFINITION OF TERMS —
where eleven (11) terms were defined. A new Section, Section 99-A was incorporated which included
as subject to VAT, one who sells, exchanges, barters PROPERTIES and one who imports
PROPERTIES.
 The BCC version (R.A. 7716) makes LESSORS of goods OR PROPERTIES and importers of goods
LIABLE to VAT.
II On Section 100 (VAT on sale of goods)
A. The H.B., S.B., and the BCC (R.A. 7716) all included sale of PROPERTIES as subject to VAT.
The term GOODS or PROPERTIES includes the following:
HB (pls. refer SB (pls. refer BCC (RA 7716

to Sec. 2) To Sec. 1(4) (Sec. 2)

1. Right or the 1. The same 1. The same

privilege to use

patent, copyright,

design, or model,

plan, secret

formula or process,

goodwill trademark,

tradebrand or other

like property or

right.

2. Right or the 2. The same 2. The same

privilege to use
in the Philippines

of any industrial,

commercial, or

scientific equip-

ment.

3. Right or the 3. The same 3. The same

privilege to use

motion picture films,

films, tapes and

discs.

4. Radio and 4. The same 4. In addition

Television time to radio and

television time the

following were

included:
 SATELLITE
TRANSMISSION

and CABLE

TELEVISION TIME

5. Other Similar 5. The Same 5. 'Other

properties similar properties'

was deleted

6. - 6. - 6. Real

properties held

primarily for sale to

customers or held

for lease in the

ordinary course or

business

B. The HB and the BCC Bills has each a provision which includes THE SALE OF GOLD TO
BANGKO SENTRAL NG PILIPINAS as falling under the term Export Sales, hence subject to 0%
VAT. The Senate Bill does not contain such provision (See Section 102-A thereof).
III. On Section 102
This section was amended to include as subject to a 10% VAT the gross receipts derived from THE
SALE OR EXCHANGE OF SERVICES, INCLUDING THE USE OR LEASE OF PROPERTIES.
The SB, HB, and BCC have the same provisions on this.
However, on what are included in the term SALE OR EXCHANGE OF SERVICES, the BCC
included/inserted the following (not found in either the House or Senate Bills):
1. Services of lessors of property WHETHER PERSONAL OR REAL; (See BCC
Report/Bill p. 7)
2. WAREHOUSING SERVICES (Ibid.,)
3. Keepers of RESTHOUSES, PENSION HOUSES, INNS, RESORTS (Ibid.,)
4. Common carriers by LAND, AIR AND SEA (Ibid.,)
5. SERVICES OF FRANCHISE GRANTEES OF TELEPHONE AND
TELEGRAPH;
6. RADIO AND TELEVISION BROADCASTING
7. ALL OTHER FRANCHISE GRANTEES EXCEPT THOSE UNDER SECTION
117 OF THIS CODE
8. SERVICES OF SURETY, FIDELITY, INDEMNITY, AND BONDING
COMPANIES.
9. Also inserted by the BCC (on page B thereof) is the LEASE OR USE OF OR
THE RIGHT TO USE OF SATTELITE TRANSMISSION AND CABLE
TELEVISION TIME
IV. On Section 103 (Exempt Transactions)
The BCC deleted subsection (f) in its entirety, despite its retention in both the House and Senate
Bills, thus under RA 7716, the "printing, publication, importation or sale of books and any
newspaper, magazine, review, or bulletin which appears at regular intervals with fixed prices for
subscription and sale and which is not devoted principally to the publication of advertisements" is
subject to VAT.
Subsection (g) was amended by the BCC (both Senate and House Bills did not) by changing the word
TEN to FIVE, thus: "Importation of passenger and/or cargo vessel of more than five thousand ton to
ocean going, including engine and spare parts of said vessel to be used by the importer himself as
operator thereof." In short, importation of vessels with tonnage of more than 5 thousand is VAT
exempt.
Subsection L, was amended by the BCC by adding the qualifying phrase: EXCEPT THOSE
RENDERED BY PROFESSIONALS.
Subsection U which exempts from VAT "Transactions which are exempt under special laws", was
amended by BCC by adding the phrase: EXCEPT THOSE GRANTED UNDER PD NOS. 66, 529,
972, 1491, and 1590, and NON-ELECTRIC COOPERATIVES under RA 6938. This is the reason
why cooperatives are now subject to VAT.
While the SALE OF REAL PROPERTIES was included in the exempt transactions under the House
Bill, the BCC made a qualification by stating:
(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO
CUSTOMERS OR HELD FOR LEASE IN THE ORDINARY COURSE OF
TRADE OR BUSINESS OR REAL PROPERTY UTILIZED FOR LOW-COST
AND SOCIALIZED HOUSING AS DEFINED BY R.A. NO. 7279 OTHERWISE
KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OF 1992
AND OTHER RELATED LAWS.
 Under the Senate Bill, the sale of real property utilized for low-cost and socialized
housing as defined by RA 7279, is one of the exempt transactions.
Under the House Bill, also exempt from VAT, is the SALE OF PROPERTIES
OTHER THAN THE TRANSACTIONS MENTIONED IN THE FOREGOING
PARAGRAPHS WITH A GROSS ANNUAL SALES AND/OR RECEIPTS OF
WHICH DOES NOT EXCEED THE AMOUNT PRESCRIBED IN THE
REGULATIONS TO BE PROMULGATED BY THE SECRETARY OF FINANCE
WHICH SHALL NOT BE LESS THAN P350,000.00 OR HIGHER THAN
P600,000.00 . . . Under the Senate Bill, the amount is P240,000.00. The BCC agreed
at the amount of not less than P480,000.00 or more than P720,000.00 SUBJECT TO
TAX UNDER SEC. 112 OF THIS CODE.
The BCC did not include, as VAT exempt, the sale or transfer of securities as defined
in the Revised Securities Act (BP 178) which was contained in both Senate and
House Bills.
V On Section 104
The phrase INCLUDING PACKAGING MATERIALS was included by the BCC on Section 104 (A)
(1) (B), and the phrase ON WHICH A VALUE-ADDED TAX HAS BEEN ACTUALLY on Section
104 (A) (2).
These phrases are not contained in either House and Senate Bills.
VI On Section 107
Both House and Senate Bills provide for the payment of P500.00 VAT registration fee. The BCC
provides for P1,000.00 VAT fee.
VII On Section 112
While both the Senate and House Bills provide that a person whose sales or receipts and are exempt
under Section 103[w] of the Code, and who are not VAT registered shall pay a tax equivalent to
THREE (3) PERCENT of his gross quarterly sales or receipts, the BCC inserted the phrase: THREE
PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO YEARS
THEREAFTER.
VIII On Section 115
Sec. 17 of SB 1630 Sec. 12 of House Bill 11197 amends this Section by clarifying that common
carriers by land, air or water FOR THE TRANSPORT OF PASSENGERS are subject to Percentage
Tax equivalent to 3% of their quarterly gross sales.
The BCC adopted this and the House Bill's provision that the GROSS RECEIPTS OF COMMON
CARRIERS DERIVED FROM THEIR INCOMING AND OUTGOING FREIGHT SHALL NOT BE
SUBJECTED TO THE LOCAL TAXES IMPOSED UNDER RA 7160. The Senate Bill has no
similar provision.
IX On Section 117
This Section has not been touched by either Senate and House Bills. But the BCC amended it by
subjecting franchises on ELECTRIC, GAS and WATER UTILITIES A TAX OF TWO PERCENT
(2%) ON GROSS RECEIPTS DERIVED . . . .
X On Section 121
The BCC adopted the Senate Bills' amendment to this section by subjecting to 5% premium tax
on life insurance business.
The House Bill does not contain this provision.
XI Others
 A) The House Bill does not contain any provision on the deferment of VAT collection on Certain
Goods and Services as does the Senate Bill (Section 19, SB 1630). But although the Senate Bill
authorizes the deferment on certain goods and services for no longer than 3 years, there is no specific
provision that authorizes the President to EXCLUDE from VAT any of these. The BCC uses the word
EXCLUDE.
B) Moreover, the Senate Bill defers the VAT on services of actors and actresses etc. for 3 years but
the BCC defers it for only 2 years.
C) Section 18 of the BCC Bill (RA 7716) is an entirely new provision not contained in the
House/Senate Bills.
D) The period within which to promulgate the implementing rules and regulations is within 60 days
under SB 1630; No specific period under the House Bill, within 90 days under RA 7716 (BCC).
E) The House Bill provides for a general repealing clause i.e., all inconsistent laws etc. are repealed.
Section 16 of the Senate Bill expressly repeals Sections 113, 114, 116, 119 and 120 of the code. The
same Senate Bill however contains a general repealing clause in Sec. 21 thereof.
RA 7716 (BCC's Bill) expressly repeals Sections 113, 114 and 116 of the NIRC; Article 39 (c) (d)
and (e) of EO 226 and provides the repeal of Sec. 119 and 120 of the NIRC upon the expiration of
two (2) years unless otherwise excluded by the President.
The charge that the Bicameral Conference Committee added new provisions in the bills of the two chambers is hardly
disputed by respondents. Instead, respondents justify them. According to respondents: (1) the Bicameral Conference
Committee has an ex post veto power or a veto after the fact of approval of the bill by both Houses; (2) the bill
prepared by the Bicameral Conference Committee, with its additions and deletions, was anyway approved by both
Houses; (3) it was the practice in past Congresses for conference committees to insert in bills approved by the two
Houses new provisions that were not originally contemplated by them; and (4) the enrolled bill doctrine precludes
inquiry into the regularity of the proceedings that led to the enactment of R.A. 7716.
With due respect, I reject these contentions which will cave in on closer examination.
First. There is absolutely no legal warrant for the bold submission that a Bicameral Conference Committee possesses
the power to add/delete provisions in bills already approved on third reading by both Houses or an ex post veto power.
To support this postulate that can enfeeble Congress itself, respondents cite no constitutional provision, no law, not
even any rule or regulation. 3 Worse, their stance is categorically repudiated by the rules of both the Senate and the
House of Representatives which define with precision the parameters of power of a Bicameral Conference Committee.
Thus, Section 209, Rule XII of the Rules of the Senate provides;
In the event that the Senate does not agree with the House of Representatives on the provision of any
bill or joint resolution, the differences shall be settled by a conference committee of both
Houseswhich shall meet within ten days after their composition.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in or amendments to the subject measure, and shall be signed by the conferees. (Emphasis
supplied)
The counterpart rule of the House of Representatives is cast in near identical language. Section 85 of the Rules of the
House of Representatives pertinently provides:
In the event that the House does not agree with the Senate on the amendments to any bill or joint
resolution, the differences may be settled by a conference committee of both chambers.
. . . . Each report shall contain a detailed, sufficiently explicit statement of the changes in or
amendments to the subject measure. (Emphasis supplied)
The Jefferson's Manual has been adopted 4 as a supplement to our parliamentary rules and practice. Section 456 of
Jefferson's Manual similarly confines the powers of a conference committee, viz: 5
The managers of a conference must confine themselves to the differences committed to them . . . and
may not include subjects not within the disagreements, even though germane to a question in issue.
This rule of antiquity has been honed and honored in practice by the Congress of the United States. Thus, it is
chronicled by Floyd Biddick, Parliamentarian Emeritus of the United States Senate, viz: 6
Committees of conference are appointed for the sole purpose of compromising and adjusting the
differing and conflicting opinions of the two Houses and the committees of conference alone can
grant compromises and modify propositions of either Houses within the limits of the disagreement.
Conferees are limited to the consideration of differences between the two Houses.
Conferees shall not insert in their report matters not committed to them by either House, nor shall
they strike from the bill matters agreed to by both Houses. No matter on which there is nothing in
either the Senate or House passed versions of a bill may be included in the conference report and
actions to the contrary would subject the report to a point of order. (Emphasis ours)
In fine, there is neither a sound nor a syllable in the Rules of the Senate and the House of Representative to support
the thesis of the respondents that a bicameral conference committee is clothed with an ex post veto power.
But the thesis that a Bicameral Conference Committee can wield ex post veto power does not only contravene the
rules of both the Senate and the House. It wages war against our settled ideals of representative democracy. For the
inevitable, catastrophic effect of the thesis is to install a Bicameral Conference Committee as the Third Chamber of
our Congress, similarly vested with the power to make laws but with the dissimilarity that its laws are not the subject
of a free and full discussion of both Houses of Congress. With such a vagrant power, a Bicameral Conference
Committee acting as a Third Chamber will be a constitutional monstrosity.
It needs no omniscience to perceive that our Constitution did not provide for a Congress composed of three chambers.
On the contrary, section 1, Article VI of the Constitution provides in clear and certain language: "The legislative
power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives . . ." Note that in vesting legislative power exclusively to the Senate and the House, the Constitution
used the word "shall." Its command for a Congress of two houses is mandatory. It is not mandatory sometimes.
In vesting legislative power to the Senate, the Constitution means the Senate ". . . composed of twenty-four Senators .
. . elected at large by the qualified voters of the Philippines . . . ." 7 Similarly, when the Constitution vested the
legislative power to the House, it means the House ". . . composed of not more than two hundred and fifty members . .
. who shall be elected from legislative districts . . . and those who . . . shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations." 8 The Constitution thus, did not vest on a
Bicameral Conference Committee with an ad hoc membership the power to legislate for it exclusively vested
legislative power to the Senate and the House as co-equal bodies. To be sure, the Constitution does not mention the
Bicameral Conference Committees of Congress. No constitutional status is accorded to them. They are not even
statutory creations. They owe their existence from the internal rules of the two Houses of Congress. Yet, respondents
peddle the disconcerting idea that they should be recognized as a Third Chamber of Congress and with ex post veto
power at that.
The thesis that a Bicameral Conference Committee can exercise law making power with ex post veto power is
freighted with mischief. Law making is a power that can be used for good or for ill, hence, our Constitution carefully
laid out a plan and a procedure for its exercise. Firstly, it vouchsafed that the power to make laws should be exercised
by no other body except the Senate and the House. It ought to be indubitable that what is contemplated is the Senate
acting as a full Senate and the House acting as a full House. It is only when the Senate and the House act as whole
bodies that they truly represent the people. And it is only when they represent the people that they can legitimately
pass laws. Laws that are not enacted by the people's rightful representatives subvert the people's sovereignty.
Bicameral Conference Committees, with their ad hoc character and limited membership, cannot pass laws for they do
not represent the people. The Constitution does not allow the tyranny of the majority. Yet, the respondents will impose
the worst kind of tyranny — the tyranny of the minority over the majority. Secondly, the Constitution delineated in
deft strokes the steps to be followed in making laws. The overriding purpose of these procedural rules is to assure that
only bills that successfully survive the searching scrutiny of the proper committees of Congress and the full and
unfettered deliberations of both Houses can become laws. For this reason, a bill has to undergo three (3) mandatory
separate readings in each House. In the case at bench, the additions and deletions made by the Bicameral Conference
Committee did not enjoy the enlightened studies of appropriate committees. It is meet to note that the complexities of
modern day legislations have made our committee system a significant part of the legislative process. Thomas Reed
called the committee system as "the eye, the ear, the hand, and very often the brain of the house." President Woodrow
Wilson of the United States once referred to the government of the United States as "a government by the Chairman of
the Standing Committees of Congress. . . " 9 Neither did these additions and deletions of the Bicameral Conference
Committee pass through the coils of collective deliberation of the members of the two Houses acting separately. Due
to this shortcircuiting of the constitutional procedure of making laws, confusion shrouds the enactment of R.A. No.
7716. Who inserted the additions and deletions remains a mystery. Why they were inserted is a riddle. To use a
Churchillian phrase, lawmaking should not be a riddle wrapped in an enigma. It cannot be, for Article II, section 28 of
the Constitution mandates the State to adopt and implement a "policy of full public disclosure of all its transactions
involving public interest." The Constitution could not have contemplated a Congress of invisible and unaccountable
John and Mary Does. A law whose rationale is a riddle and whose authorship is obscure cannot bind the people.
All these notwithstanding, respondents resort to the legal cosmetology that these additions and deletions should
govern the people as laws because the Bicameral Conference Committee Report was anyway submitted to and
approved by the Senate and the House of Representatives. The submission may have some merit with respect to
provisions agreed upon by the Committee in the process of reconciling conflicts between S.B. No. 1630 and H.B. No.
11197. In these instances, the conflicting provisions had been previously screened by the proper committees,
deliberated upon by both Houses and approved by them. It is, however, a different matter with respect to additions and
deletions which were entirely new and which were made not to reconcile inconsistencies between S.B. No. 1630 and
H.B. No. 11197. The members of the Bicameral Conference Committee did not have any authority to add new
provisions or delete provisions already approved by both Houses as it was not necessary to discharge their limited task
of reconciling differences in bills. At that late stage of law making, the Conference Committee cannot add/delete
provisions which can become laws without undergoing the study and deliberation of both chambers given to bills on
1st, 2nd, and 3rd readings. Even the Senate and the House cannot enact a law which will not undergo these mandatory
three (3) readings required by the Constitution. If the Senate and the House cannot enact such a law, neither can the
lesser Bicameral Conference Committee.
Moreover, the so-called choice given to the members of both Houses to either approve or disapprove the said
additions and deletions is more of an optical illusion. These additions and deletions are not submitted separately for
approval. They are tucked to the entire bill. The vote is on the bill as a package, i.e., together with the insertions and
deletions. And the vote is either "aye" or "nay," without any further debate and deliberation. Quite often, legislators
vote "yes" because they approve of the bill as a whole although they may object to its amendments by the Conference
Committee. This lack of real choice is well observed by Robert Luce: 10
Their power lies chiefly in the fact that reports of conference committees must be accepted without
amendment or else rejected in toto. The impulse is to get done with the matter and so the motion to
accept has undue advantage, for some members are sure to prefer swallowing unpalatable provisions
rather than prolong controversy. This is the more likely if the report comes in the rush of business
toward the end of a session, when to seek further conference might result in the loss of the measure
altogether. At any time in the session there is some risk of such a result following the rejection of a
conference report, for it may not be possible to secure a second conference, or delay may give
opposition to the main proposal chance to develop more strength.
In a similar vein, Prof. Jack Davies commented that "conference reports are returned to assembly and Senate on a
take-it or leave-it-basis, and the bodies are generally placed in the position that to leave-it is a practical
impossibility." 11 Thus, he concludes that "conference committee action is the most undemocratic procedure in the
legislative process." 12
The respondents also contend that the additions and deletions made by the Bicameral Conference Committee were in
accord with legislative customs and usages. The argument does not persuade for it misappreciates the value of
customs and usages in the hierarchy of sources of legislative rules of procedure. To be sure, every legislative assembly
has the inherent right to promulgate its own internal rules. In our jurisdiction, Article VI, section 16(3) of the
Constitution provides that "Each House may determine the rules of its proceedings . . ." But it is hornbook law that the
sources of Rules of Procedure are many and hierarchical in character. Mason laid them down as follows: 13
xxx xxx xxx
1. Rules of Procedure are derived from several sources. The principal sources are as follows:
a. Constitutional rules.
b. Statutory rules or charter provisions.
c. Adopted rules.
 d. Judicial decisions.
e. Adopted parliamentary authority.
f. Parliamentary law.
g. Customs and usages.
2. The rules from the different sources take precedence in the order listed above except that judicial
decisions, since they are interpretations of rules from one of the other sources, take the same
precedence as the source interpreted. Thus, for example, an interpretation of a constitutional
provision takes precedence over a statute.
3. Whenever there is conflict between rules from these sources the rule from the source listed earlier
prevails over the rule from the source listed, later. Thus, where the Constitution requires three
readings of bills, this provision controls over any provision of statute, adopted rules, adopted manual,
or of parliamentary law, and a rule of parliamentary law controls over a local usage but must give
way to any rule from a higher source of authority. (Emphasis ours)
As discussed above, the unauthorized additions and deletions made by the Bicameral Conference Committee violated
the procedure fixed by the Constitution in the making of laws. It is reasonless for respondents therefore to justify these
insertions as sanctioned by customs and usages.
Finally, respondents seek sanctuary in the conclusiveness of an enrolled bill to bar any judicial inquiry on whether
Congress observed our constitutional procedure in the passage of R.A. No. 7716. The enrolled bill theory is a
historical relic that should not continuously rule us from the fossilized past. It should be immediately emphasized that
the enrolled bill theory originated in England where there is no written constitution and where Parliament is
supreme. 14 In this jurisdiction, we have a written constitution and the legislature is a body of limited powers.
Likewise, it must be pointed out that starting from the decade of the 40's, even American courts have veered away
from the rigidity and unrealism of the conclusiveness of an enrolled bill. Prof. Sutherland observed: 15
xxx xxx xxx.
Where the failure of constitutional compliance in the enactment of statutes is not discoverable from
the face of the act itself but may be demonstrated by recourse to the legislative journals, debates,
committee reports or papers of the governor, courts have used several conflicting theories with which
to dispose of the issue. They have held: (1) that the enrolled bill is conclusive and like the sheriff's
return cannot be attacked; (2) that the enrolled bill is prima facie correct and only in case the
legislative journal shows affirmative contradiction of the constitutional requirement will the bill be
held invalid, (3) that although the enrolled bill is prima facie correct, evidence from the journals, or
other extrinsic sources is admissible to strike the bill down; (4) that the legislative journal is
conclusive and the enrolled bill is valid only if it accords with the recital in the journal and the
constitutional procedure.
Various jurisdictions have adopted these alternative approaches in view of strong dissent and dissatisfaction against
the philosophical underpinnings of the conclusiveness of an enrolled bill. Prof. Sutherland further observed:
. . . Numerous reasons have been given for this rule. Traditionally, an enrolled bill was "a record" and
as such was not subject to attack at common law. Likewise, the rule of conclusiveness was similar to
the common law rule of the inviolability of the sheriff's return. Indeed, they had the same origin, that
is, the sheriff was an officer of the king and likewise the parliamentary act was a regal act and no
official might dispute the king's word. Transposed to our democratic system of government, courts
held that as the legislature was an official branch of government the court must indulge every
presumption that the legislative act was valid. The doctrine of separation of powers was advanced as
a strong reason why the court should treat the acts of a co-ordinate branch of government with the
same respect as it treats the action of its own officers; indeed, it was thought that it was entitled to
even greater respect, else the court might be in the position of reviewing the work of a supposedly
equal branch of government. When these arguments failed, as they frequently did, the doctrine of
convenience was advanced, that is, that it was not only an undue burden upon the legislature to
preserve its records to meet the attack of persons not affected by the procedure of enactment, but also
that it unnecessarily complicated litigation and confused the trial of substantive issues.
 Although many of these arguments are persuasive and are indeed the basis for the rule in many states
today, they are not invulnerable to attack. The rule most relied on — the sheriff's return or sworn
official rule — did not in civil litigation deprive the injured party of an action, for always he could
sue the sheriff upon his official bond. Likewise, although collateral attack was not permitted, direct
attack permitted raising the issue of fraud, and at a later date attack in equity was also available; and
that the evidence of the sheriff was not of unusual weight was demonstrated by the fact that in an
action against the sheriff no presumption of its authenticity prevailed.
The argument that the enrolled bill is a "record" and therefore unimpeachable is likewise misleading,
for the correction of records is a matter of established judicial procedure. Apparently, the justification
is either the historical one that the king's word could not be questioned or the separation of powers
principle that one branch of the government must treat as valid the acts of another.
Persuasive as these arguments are, the tendency today is to avoid reaching results by artificial
presumptions and thus it would seem desirable to insist that the enrolled bill stand or fall on the basis
of the relevant evidence which may be submitted for or against it.
(Emphasis ours)
Thus, as far back as the 1940's, Prof. Sutherland confirmed that ". . . the tendency seems to be toward the
abandonment of the conclusive presumption rule and the adoption of the third rule leaving only a prima
faciepresumption of validity which may be attacked by any authoritative source of information." 16
I am not unaware that this Court has subscribed to the conclusiveness of an enrolled bill as enunciated in the 1947
lead case of Mabanag v. Lopez Vito, and reiterated in subsequent cases. 17
With due respect, I submit that these rulings are no longer good law. Part of the ratiocination in Mabanag states:
xxx xxx xxx
If for no other reason than that it conforms to the expressed policy of our law making body, we
choose to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No.
2210, provides: "Official documents" may be proved as follows: . . . (2) the proceedings of the
Philippine Commission, or of any legislative body that may be provided for in the Philippine Islands,
or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or
resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, That
in the case of Acts of the Philippine Commission or the Philippine Legislature, when there is an
existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof.
Suffice to state that section 313 of the Old Code of Civil Procedure as amended by Act No. 2210 is no longer in our
statute books. It has long been repealed by the Rules of Court. Mabanag also relied on jurisprudence and authorities in
the United States which are under severe criticisms by modern scholars. Hence, even in the United States the
conclusiveness of an enrolled bill has been junked by most of the States. It is also true that as late as last year, in the
case of Philippine Judges Association v. Prado, op. cit., this Court still relied on the conclusiveness of an enrolled bill
as it refused to invalidate a provision of law on the ground that it was merely inserted by the bicameral conference
committee of both Houses. Prado, however, is distinguishable. In Prado, the alleged insertion of the second paragraph
of section 35 of R.A. No. 7354 repealing the franking privilege of the judiciary does not appear to be an uncontested
fact. In the case at bench, the numerous additions/deletions made by the Bicameral Conference Committee as detailed
by petitioners Tolentino and Salonga are not disputed by the respondents. In Prado, the Court was not also confronted
with the argument that it can no longer rely on the conclusiveness of an enrolled bill in light of the new provision in
the Constitution defining judicial power. More specifically, section 1 of Article VIII now provides:
Sec. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis supplied)
Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional Commission
explained the sense and the reach of judicial power as follows: 18
xxx xxx xxx
. . . In other words, the judiciary is the final arbiter on the question of whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not
only a judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute political
question. (Emphasis ours)
The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to
exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any
act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting
to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court
against the other branches of government despite their more democratic character, the President and the legislators
being elected by the people.
It is, however, theorized that this provision is nothing new. 19 I beg to disagree for the view misses the significant
changes made in our constitutional canvass to cure the legal deficiencies we discovered during martial law. One of the
areas radically changed by the framers of the 1987 Constitution is the imbalance of power between and among the
three great branches of our government — the Executive, the Legislative and the Judiciary. To upgrade the powers of
the Judiciary, the Constitutional Commission strengthened some more the independence of courts. Thus, it further
protected the security of tenure of the members of the Judiciary by providing "No law shall be passed reorganizing the
Judiciary when it undermines the security of tenure of its Members." 20 It also guaranteed fiscal autonomy to the
Judiciary. 21
More, it depoliticalized appointments in the judiciary by creating the Judicial and Bar Council which was tasked with
screening the list of prospective appointees to the judiciary. 22 The power of confirming appointments to the judiciary
was also taken away from Congress. 23 The President was likewise given a specific time to fill up vacancies in the
judiciary — ninety (90) days from the occurrence of the vacancy in case of the Supreme Court 24and ninety (90) days
from the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies in the lower
courts. 25 To further insulate appointments in the judiciary from the virus of politics, the Supreme Court was given the
power to "appoint all officials and employees of the Judiciary in accordance with the Civil Service Law." 26 And to
make the separation of the judiciary from the other branches of government more watertight, it prohibited members of
the judiciary to be " . . . designated to any agency performing quasi judicial or administrative functions." 27 While the
Constitution strengthened the sinews of the Supreme Court, it reduced the powers of the two other branches of
government, especially the Executive. Notable of the powers of the President clipped by the Constitution is his power
to suspend the writ of habeas corpus and to proclaim martial law. The exercise of this power is now subject to
revocation by Congress. Likewise, the sufficiency of the factual basis for the exercise of said power may be reviewed
by this Court in an appropriate proceeding filed by any citizen. 28
The provision defining judicial power as including the "duty of the courts of justice . . . to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government" constitutes the capstone of the efforts of the Constitutional Commission to
upgrade the powers of this Court vis-a-vis the other branches of government. This provision was dictated by our
experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses
in government. As sharply stressed by petitioner Salonga, this provision is distinctly Filipino and its interpretation
should not be depreciated by undue reliance on inapplicable foreign jurisprudence. It is thus crystal clear that unlike
other Supreme Courts, this Court has been mandated by our new Constitution to be a more active agent in annulling
acts of grave abuse of discretion committed by a branch of government or any of its officials. This new role, however,
will not compel the Court, appropriately defined by Prof. A. Bickel as the least dangerous branch of government, to
assume imperial powers and run roughshod over the principle of separation of power for that is judicial tyranny by
any language. But while respecting the essential of the principle of separation of power, the Court is not to be
restricted by its non-essentials. Applied to the case at bench, by voiding R.A. No. 7716 on the ground that its
enactment violated the procedure imposed by the Constitution in lawmaking, the Court is not by any means wrecking
the wall separating the powers between the legislature and the judiciary. For in so doing, the Court is not engaging in
lawmaking which is the essence of legislative power. But the Court's interposition of power should not be defeated by
the conclusiveness of the enrolled bill. A resort to this fiction will result in the enactment of laws not properly
deliberated upon and passed by Congress. Certainly, the enrolled bill theory was not conceived to cover up violations
of the constitutional procedure in law making, a procedure intended to assure the passage of good laws. The
conclusiveness of the enrolled bill can, therefore, be disregarded for it is not necessary to preserve the principle of
separation of powers.
In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of
discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by
our distinct experience as a nation, is not merely evolutionary but revolutionary. Under the 1935 and 1973
Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress — this Court is mandated to approach constitutional violations not by
finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating
a past that petrifies the present.
I vote to declare R.A. No. 7716 unconstitutional.

BELLOSILLO, J.:
With a consensus already reached after due deliberations, silence perhaps should be the better part of discretion,
except to vote. The different views and opinions expressed are so persuasive and convincing; they are more than
enough to sway the pendulum for or against the subject petitions. The penetrating and scholarly dissertations of my
brethren should dispense with further arguments which may only confound and confuse even the most learned of men.
But there is a crucial point, a constitutional issue which, I submit, has been belittled, treated lightly, if not almost
considered insignificant and purposeless. It is elementary, as much as it is fundamental. I am referring to the word
"exclusively" appearing in Sec. 24, Art. VI, of our 1987 Constitution. This is regrettable, to say the least, as it involves
a constitutional mandate which, wittingly or unwittingly, has been cast aside as trivial and meaningless.
A comparison of the particular provision on the enactment of revenue bills in the U.S. Constitution with its
counterpart in the Philippine Constitution will help explain my position.
Under the U.S. Constitution, "[a]ll bills for raising revenue shall originate in the House of Representatives; but the
Senate may propose or concur with amendments as on other bills" (Sec. 7, par. [1], Art. I). In contrast, our 1987
Constitution reads: "All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose
or concur with amendments" (Sec. 24, Art. VI; Emphasis supplied).
As may be gleaned from the pertinent provision of our Constitution, all revenue bills are required to originate
"exclusively" in the House of Representatives. On the other hand, the U.S. Constitution does not use the word
"exclusively;" it merely says, "[a]ll bills for raising revenue shall originate in the House of Representatives."
Since the term "exclusively" has already been adequately defined in the various opinions, as to which there seems to
be no dispute, I shall no longer offer my own definition.
Verily, the provision in our Constitution requiring that all revenue bills shall originate exclusively from the Lower
House is mandatory. The word "exclusively" is an "exclusive word," which is indicative of an intent that the provision
is mandatory. 1 Hence, all American authorities expounding on the meaning and application of Sec. 7, par. (1), Art. I,
of the U.S. Constitution cannot be used in the interpretation of Sec. 24, Art. VI, of our 1987 Constitution which has a
distinct feature of "exclusiveness" all its own. Thus, when our Constitution absolutely requires — as it is mandatory
— that a particular bill should exclusively emanate from the Lower House, there is no alternative to the requirement
that the bill to become valid law must originate exclusively from that House.
In the interpretation of constitutions, questions frequently arise as to whether particular sections are mandatory or
directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the
tendency of the legislature to disregard provisions which are not said to be mandatory. Accordingly, it is the general
rule to regard constitutional provisions as mandatory, and not to leave any discretion to the will of the legislature to
obey or disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably
manifest that the provisions are intended to be merely directory. So strong is the inclination in favor of giving
obligatory force to the terms of the organic law that it has even been said that neither by the courts nor by any other
department of the government may any provision of the Constitution be regarded as merely directory, but that each
and everyone of its provisions should be treated as imperative and mandatory, without reference to the rules and
distinguishing between the directory and the mandatory statutes. 2
The framers of our 1987 Constitution could not have used the term "exclusively" if they only meant to replicate and
adopt in toto the U.S. version. By inserting "exclusively" in Sec. 24, Art. VI, of our Constitution, their message is
clear: they wanted it different, strong, stringent. There must be a compelling reason for the inclusion of the word
"exclusively," which cannot be an act of retrogression but progression, an improvement on its precursor. Thus,
"exclusively" must be given its true meaning, its purpose observed and virtue recognized, for it could not have been
conceived to be of minor consequence. That construction is to be sought which gives effect to the whole of the statute
— its every word. Ut magis valeat quam pereat.
Consequently, any reference to American authorities, decisions and opinions, however wisely and delicately put, can
only mislead in the interpretation of our own Constitution. To refer to them in defending the constitutionality of R.A.
7716, subject of the present petitions, is to argue on a false premise, i.e., that Sec. 24, Art. VI, of our 1987 Constitution
is, or means exactly, the same as Sec. 7, par. (1), Art. I, of the U.S. Constitution, which is not correct. Hence, only a
wrong conclusion can be drawn from a wrong premise.
For example, it is argued that in the United States, from where our own legislature is patterned, the Senate can
practically substitute its own tax measure for that of the Lower House. Thus, according to the Majority, citing an
American case, "the validity of Sec. 37 which the Senate had inserted in the Tariff Act of 1909 by imposing an ad
valorem tax based on the weight of vessels, was upheld against the claim that the revenue bill originated in the Senate
in contravention of Art. I, Sec. 7, of the U.S. Constitution." 3 In an effort to be more convincing, the Majority even
quotes the footnote in Introduction to American Government by F.A. Ogg and P.O. Ray which reads —
Thus in 1883 the upper house struck out everything after the enacting clause of a tariff bill and wrote
its own measure, which the House eventually felt obliged to accept. It likewise added 847
amendments to the Payne-Aldrich tariff act of 1909, dictated the schedules of the emergency tariff act
of 1921, rewrote an extensive tax revision bill in the same year, and recast most of the permanent
tariff bill of 1922 4 —
which in fact suggests, very clearly, that the subject revenue bill actually originated from the Lower House and was
only amended, perhaps considerably, by the Senate after it was passed by the former and transmitted to the latter.
In the cases cited, where the statutes passed by the U.S. Congress were upheld, the revenue bills did not actually
originate from the Senate but, in fact, from the Lower House. Thus, the Supreme Court of the United States, speaking
through Chief Justice White in Rainey v. United States 5 upheld the revenue bill passed by Congress and adopted the
ruling of the lower court that —
. . . the section in question is not void as a bill for raising revenue originating in the Senate and not in
the House of Representatives. It appears that the section was proposed by the Senate as an
amendment to a bill for raising revenue which originated in the House. That is sufficient.
Flint v. Stone Tracy Co., 6 on which the Solicitor General heavily leans in his Consolidated Comment as well as in his
Memorandum, does not support the thesis of the Majority since the subject bill therein actually originated from the
Lower House and not from the Senate, and the amendment merely covered a certain provision in the House bill.
In fine, in the cases cited which were lifted from American authorities, it appears that the revenue bills in question
actually originated from the House of Representatives and were amended by the Senate only after they were
transmitted to it. Perhaps, if the factual circumstances in those cases were exactly the same as the ones at bench, then
the subject revenue or tariff bill may be upheld in this jurisdiction on the principle of substantial compliance, as they
were in the United States, except possibly in instances where the House bill undergoes what is now referred to as
"amendment by substitution," for that would be in derogation of our Constitution which vests solely in the House of
Representatives the power to initiate revenue bills. A Senate amendment by substitution simply means that the bill in
question did not in effect originate from the lower chamber but from the upper chamber and not disguises itself as a
mere amendment of the House version.
It is also theorized that in the U.S., amendment by substitution is recognized. That may be true. But the process may
be validly effective only under the U.S. Constitution. The cases before us present a totally different factual backdrop.
Several months before the Lower House could even pass HB No. 11197, P.S. Res. No. 734 and SB No. 1129 had
already been filed in the Senate. Worse, the Senate subsequently approved SB No. 1630 "in substitution of SB No.
1129, taking into consideration P.S. Res. No. 734 and HB No. 11197," and not HB No. 11197 itself "as amended."
Here, the Senate could not have proposed or concurred with amendments because there was nothing to concur with or
amend except its own bill. It must be stressed that the process of concurring or amending presupposes that there exists
a bill upon which concurrence may be based or amendments introduced. The Senate should have reported out HB No.
11197, as amended, even if in the amendment it took into consideration SB No. 1630. It should not have submitted to
the Bicameral Conference Committee SB No. 1630 which, admittedly, did not originate exclusively from the Lower
House.
But even assuming that in our jurisdiction a revenue bill of the Lower House may be amended by substitution by the
Senate — although I am not prepared to accept it in view of Sec. 24, Art. VI, of our Constitution — still R.A. 7716
could not have been the result of amendment by substitution since the Senate had no House bill to speak of that it
could amend when the Senate started deliberating on its own version.
Be that as it may, I cannot rest easy on the proposition that a constitutional mandate calling for the exclusive power
and prerogative of the House of Representatives may just be discarded and ignored by the Senate. Since the
Constitution is for the observance of all — the judiciary as well as the other departments of government — and the
judges are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands. And it is
not fair and just to impute to them undue interference if they look into the validity of legislative enactments to
determine whether the fundamental law has been faithfully observed in the process. It is their duty to give effect to the
existing Constitution and to obey all constitutional provisions irrespective of their opinion as to the wisdom of such
provisions.
The rule is fixed that the duty in a proper case to declare a law unconstitutional cannot be declined and must be
performed in accordance with the deliberate judgment of the tribunal before which the validity of the enactment is
directly drawn into question. When it is clear that a statute transgresses the authority vested in the legislature by the
Constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shirk from it without
violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state
is imperative and unceasing; and, as Chief Justice Marshal said, whenever a statute is in violation of the fundamental
law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the
destruction of the Constitution. Since the question as to the constitutionality of a statute is a judicial matter, the courts
will not decline the exercise of jurisdiction upon the suggestion that action might be taken by political agencies in
disregard of the judgment of the judicial tribunals. 7
It is my submission that the power and authority to originate revenue bills under our Constitution is
vestedexclusively in the House of Representatives. Its members being more numerous than those of the Senate, elected
more frequently, and more directly represent the people, are therefore considered better aware of the economic life of
their individual constituencies. It is just proper that revenue bills originate exclusively from them.
In this regard, we do not have to devote much time delving into American decisions and opinions and invoke them in
the interpretation of our own Constitution which is different from the American version, particularly on the enactment
of revenue bills. We have our own Constitution couched in a language our own legislators thought best. Insofar as
revenue bills are concerned, our Constitution is not American; it is distinctively Filipino. And no amplitude of
legerdemain can detract from our constitutional requirement that all appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local application, and private bills shall originateexclusively in the
House of Representatives, although the Senate may propose or concur with amendments.
In this milieu, I am left no option but to vote to grant the petitions and strike down R.A. 7716 as unconstitutional.

# Separate Opinions
NARVASA, C.J.:
I fully concur with the conclusions set forth in the scholarly opinion of my learned colleague, Mr Justice Vicente V.
Mendoza. I write this separate opinion to express my own views relative to the procedural issues raised by the various
petitions and death with by some other Members of the Court in their separate opinions.
By their very nature, it would seem, discussions of constitutional issues prove fertile ground for a not uncommon
phenomenon: debate marked by passionate partisanship amounting sometimes to impatience with adverse views, an
eagerness on the part of the proponents on each side to assume the role of, or be perceived as, staunch defenders of
constitutional principles, manifesting itself in flights of rhetoric, even hyperbole. The peril in this, obviously, is a
diminution of objectivity — that quality which, on the part of those charged with the duty and authority of interpreting
the fundamental law, is of the essence of their great function. For the Court, more perhaps than for any other person or
group, it is necessary to maintain that desirable objectivity. It must make certain that on this as on any other occasion,
the judicial function is meticulously performed, the facts ascertained as comprehensively and as accurately as
possible, all the issues particularly identified, all the arguments clearly understood; else, it may itself be accused, by
its own members or by others, of a lack of adherence to, or a careless observance of, its own procedures, the
signatures of its individual members on its enrolled verdicts notwithstanding.
In the matter now before the Court, and whatever reservations some people may entertain about their intellectual
limitations or moral scruples, I cannot bring myself to accept the thesis which necessarily implies that the members of
our august Congress, in enacting the expanded VAT law, exposed their ignorance, or indifference to the observance, of
the rules of procedure set down by the Constitution or by their respective chambers, or what is worse, deliberately
ignored those rules for some yet undiscovered purpose nefarious in nature, or at least some purpose other than the
public weal; or that a few of their fellows, acting as a bicameral conference committee, by devious schemes and
cunning maneuvers, and in conspiracy with officials of the Executive Department and others, succeeded in "pulling
the wool over the eyes" of all their other colleagues and foisting on them a bill containing provisions that neither
chamber of our bicameral legislature conceived or contemplated. This is the thesis that the petitioners would have this
Court approve. It is a thesis I consider bereft of any factual or logical foundation.
Other than the bare declarations of some of the petitioners, or arguments from the use and import of the language
employed in the relevant documents and records, there is no evidence before the Court adequate to support a finding
that the legislators concerned, whether of the upper or lower chamber, acted otherwise than in good faith, in the honest
discharge of their functions, in the sincere belief that the established procedures were being regularly observed or, at
least, that there occurred no serious or fatal deviation therefrom. There is no evidence on which reasonably to rest a
conclusion that any executive or other official took part in or unduly influenced the proceedings before the bicameral
conference committee, or that the members of the latter were motivated by a desire to surreptitiously introduce
improper revisions in the bills which they were required to reconcile, or that after agreement had been reached on the
mode and manner of reconciliation of the "disagreeing provisions," had resorted to stratragems or employed under-
handed ploys to ensure their approval and adoption by either House. Neither is there any proof that in voting on the
Bicameral Conference Committee (BCC) version of the reconciled bills, the members of the Senate and the House did
so in ignorance of, or without understanding, the contents thereof or the bills therein reconciled.
Also unacceptable is the theory that since the Constitution requires appropriation and revenue bills to originate
exclusively in the House of Representatives, it is improper if not unconstitutional for the Senate to formulate, or even
think about formulating, its own draft of this type of measure in anticipation of receipt of one transmitted by the lower
Chamber. This is specially cogent as regards much-publicized suggestions for legislation (like the expanded VAT
Law) emanating from one or more legislators, or from the Executive Department, or the private sector, etc. which
understandably could be expected to forthwith generate much Congressional cogitation.
Exclusive origination, I submit, should have no reference to time of conception. As a practical matter, origination
should refer to the affirmative act which effectively puts the bicameral legislative procedure in motion, i.e., the
transmission by one chamber to the other of a bill for its adoption. This is the purposeful act which sets the legislative
machinery in operation to effectively lead to the enactment of a statute. Until this transmission takes place, the
formulation and discussions, or the reading for three or more times of proposed measures in either chamber, would be
meaningless in the context of the activity leading towards concrete legislation. Unless transmitted to the other
chamber, a bill prepared by either house cannot possibly become law. In other words, the first affirmative, efficacious
step, the operative act as it were, leading to actual enactment of a statute, is the transmission of a bill from one house
to the other for action by the latter. This is the origination that is spoken of in the Constitution in its Article VI, Section
24, in reference to appropriation, revenue, or tariff bills, etc.
It may be that in the Senate, revenue or tax measures are discussed, even drafted, and this before a similar activity
takes place in the House. This is of no moment, so long as those measures or

MISSING PAGE 3

Report (No. 349) stating that HB 11197 was considered, and recommending that SB 1630 be approved "in substitution
of S.B. No. 1129, taking into consideration P.S. Res. No. 734 1 and H.B. No. 11197." This Report made known to the
Senate, and clearly indicates, that H.B. No. 11197 was indeed deliberated on by the Committee; in truth, as Senator
Herrera pointed out, the BCC later "agreed to adopt (a broader coverage of the VAT) which is closely adhering to the
Senate version ** ** with some new provisions or amendments." The plain implication is that the Senate Committee
had indeed discussed HB 11197 in comparison with the inconsistent parts of SB 1129 and afterwards proposed
amendments to the former in the form of a new bill (No. 1630) more closely akin to the Senate bill (No. 1129).
And it is as reasonable to suppose as not that later, during the second and third readings on March 24, 1994, the
Senators, assembled as a body, had before them copies of HB 11197 and SB 1129, as well as of the Committee's new
"SB 1630" that had been recommended for their approval, or at the very least were otherwise perfectly aware that they
were considering the particular provisions of these bills. That there was such a deliberation in the Senate on HB 11197
in light of inconsistent portions of SB 1630, may further be necessarily inferred from the request, made by the Senate
on the same day, March 24, 1994, for the convocation of a bicameral conference committee to reconcile "the
disagreeing provisions of said bill (SB 1630) and House Bill No. 11197," a request that could not have been made had
not the Senators more or less closely examined the provisions of HB 11197 and compared them with those of the
counterpart Senate measures.
Were the proceedings before the bicameral conference committee fatally flawed? The affirmative is suggested because
the committee allegedly overlooked or ignored the fact that SB 1630 could not validly originate in the Senate, and that
HB 11197 and SB 1630 never properly passed both chambers. The untenability of these contentions has already been
demonstrated. Now, demonstration of the indefensibility of other arguments purporting to establish the impropriety of
the BCC proceedings will be attempted.
There is the argument, for instance, that the conference committee never used HB 11197 even as "frame of reference"
because it does not appear that the suggestion therefor (made by House Penal Chairman Exequiel Javier at the
bicameral conference committee's meeting on April 19, 1994, with the concurrence of Senator Maceda) was ever
resolved, the minutes being regrettably vague as to what occurred after that suggestion was made. It is, however, as
reasonable to assume that it was, as it was not, given the vagueness of the minutes already alluded to. In fact, a
reading of the BCC Report persuasively demonstrates that HB 11197 was not only utilized as a "frame of reference"
but actually discussed and deliberated on.
Said BCC Report pertinently states: 2
CONFERENCE COMMITTEE REPORT
The Conference Committee on the disagreeing provisions of House Bill No. 11197, entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 1013, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116
OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113SD AND
114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED
and Senate Bill No. 1630 entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 1 106, 107, 108 AND 110 OF TITLE IV, 112, 115, 117 AND 121
OF TITLE V, ACND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 1113, 114,
116, 119 AND 120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES
 having met, after full and free conference, has agreed to recommend and do hereby recommend to
their respective Houses that House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the
conferees.
Approved.
The Report, it will be noted, explicitly adverts to House Bill No. 11197, it being in fact mentioned ahead of Senate
Bill No. 1630; graphically shows the very close identity of the subjects of both bills (indicated in their respective
titles); and clearly says that the committee met in "full and free conference" on the "disagreeing provisions" of both
bills (obviously in an effort to reconcile them); and that reconciliation of said "disagreeing provisions" had been
effected, the BCC having agreed that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved
in accordance with the attached copy of the bill as reconciled and approved by the conferees."
It may be concluded, in other words, that, conformably to the procedure provided in the Constitution with which all
the Members of the bicameral conference committee cannot but be presumed to be familiar, and no proof to the
contrary having been adduced on the point, it was the original bill (HB 11197) which said body had considered and
deliberated on in detail, reconciled or harmonized with SB 1630, and used as basis for drawing up the amended
version eventually reported out and submitted to both houses of Congress.
It is further contended that the BCC was created and convoked prematurely, that SB 1630 should first have been sent
to the House of Representatives for concurrence It is maintained, in other words, that the latter chamber should have
refused the Senate request for a bicameral conference committee to reconcile the "disagreeing provisions" of both
bills, and should have required that SB 1630 be first transmitted to it. This, seemingly, is nit-picking given the urgency
of the proposed legislation as certified by the President (to both houses, in fact). Time was of the essence, according to
the President's best judgment — as regards which absolutely no one in either chamber of Congress took exception,
general acceptance being on the contrary otherwise manifested — and that judgment the Court will not now question.
In light of that urgency, what was so vital or indispensable about such a transmittal that its absence would invalidate
all else that had been done towards enactment of the law, completely escapes me, specially considering that the House
had immediately acceded without demur to the request for convocation of the conference committee.
What has just been said should dispose of the argument that the statement in the enrolled bill, that "This Act which is
a consolidation of House Bill No. 11197 and Senate Bill No. 11630 was finally passed by the House of
Representatives and the Senate on April 27, 1994 and May 2, 1994," necessarily signifies that there were two (2) bills
separately introduced, retaining their independent existence until they reached the bicameral conference committee
where they were consolidated, and therefore, the VAT law did not originate exclusively in the House having originated
in part in the Senate as SB 1630, which bill was not embodied in but merely merged with HB 11197, retaining its
separate identity until it was joined by the BCC with the house measure. The more logical, and fairer, course is to
construe the expression, "consolidation of House Bill No. 11197 and Senate Bill No. 11630" in the context of
accompanying and contemporaneous statements, i.e.: (a) the declaration in the BCC Report, supra, that the committee
met to reconcile the disagreeing provisions of the two bills, "and after full and free conference" on the matter, agreed
and so recommended that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in
accordance with the attached copy of the bill as reconciled and approved by the conferees;" and (b) the averment of
Senator Herrera, in the Report of the Ways and Means Committee, supra, that the committee had actually
"considered" (discussed) HB No. 11197 and taken it "into consideration" in recommending that its own version of the
measure (SB 1630) be the one approved.
That the Senate might have drawn up its own version of the expanded VAT bill, contemporaneously with or even
before the House did, is of no moment. It bears repeating in this connection that no VAT bill ever originated in the
Senate; neither its SB 1129 or SB 1630 or any of its drafts was ever officially transmitted to the House as an initiating
bill which, as already pointed out, is what the Constitution forbids; it was HB 11197 that was first sent to the Senate,
underwent first reading, was referred to Committee on Ways and Means and there discussed in relation to and in
comparison with the counterpart Senate version or versions — the mere formulation of which was, as also already
discussed, not prohibited to it — and afterwards considered by the Senate itself, also in connection with SB 1630, on
second and third readings. HB 11197 was in the truest sense, the originating bill.
An issue has also arisen respecting the so-called "enrolled bill doctrine" which, it is said, whatever sacrosanct status it
might originally have enjoyed, is now in bad odor with modern scholars on account of its imputed rigidity and
unrealism; it being also submitted that the ruling in Mabanag v. Lopez Vito (78 Phil. 1) and the cases reaffirming it, is
no longer good law, it being based on a provision of the Code of Civil Procedure 3 long since stricken from the statute
books.
I would myself consider the "enrolled bill" theory as laying down a presumption of so strong a character as to be well
nigh absolute or conclusive, fully in accord with the familiar and fundamental philosophy of separation of powers.
The result, as far as I am concerned, is to make discussion of the enrolled bill principle purely academic; for as
already pointed out, there is no proof worthy of the name of any facts to justify its reexamination and, possibly,
disregard.
The other question is, what is the nature of the power given to a bicameral conference committee of reconciling
differences between, or "disagreeing provisions" in, a bill originating from the House in relation to amendments
proposed by the Senate — whether as regards some or all of its provisions? Is the mode of reconciliation, subject to
fixed procedure and guidelines? What exactly can the committee do, or not do? Can it only clarify or revise provisions
found in either Senate or House bill? Is it forbidden to propose additional or new provisions, even on matters
necessarily or reasonably connected with or germane to items in the bills being reconciled?
In answer, it is postulated that the reconciliation function is quite limited. In these cases, the conference committee
should have confined itself to reconciliation of differences or inconsistencies only by (a) restoring provisions of
HB11197 aliminated by SB 1630, or (b) sustaining wholly or partly the Senate amendments, or (c) as a compromise,
agreeing that neither provisions nor amendments be carried into the final form of HB 11197 for submission to both
chambers of the legislature.
The trouble is, it is theorized, the committee incorporated activities or transactions which were not within the
contemplation of both bills; it made additions and deletions which did not enjoy the enlightenment of initial
committee studies; it exercised what is known as an "ex post veto power" granted to it by no law, rule or regulation, a
power that in truth is denied to it by the rules of both the Senate and the House. In substantiation, the Senate rule is
cited, similar to that of the House, providing that "differences shall be settled by a conference committee" whose
report shall contain "detailed and sufficiently explicit statement of the changes in or amendments to the subject
measure, ** (to be) signed by the conferees;" as well as the "Jefferson's Manual," adopted by the Senate as
supplement to its own rules, directing that the managers of the conference must confine themselves to differences
submitted to them; they may not include subjects not within the disagreements even though germane to a question in
issue."
It is significant that the limiting proviso in the relevant rules has been construed and applied as directory, not
mandatory. During the oral argument, counsel for petitioners admitted that the practice for decades has been for
bicameral conference committees to include such provisions in the reconciled bill as they believed to be germane or
necessary and acceptable to both chambers, even if not within any of the "disagreeing provisions," and the reconciled
bills, containing such provisions had invariably been approved and adopted by both houses of Congress. It is a
practice, they say, that should be stopped. But it is a practice that establishes in no uncertain manner the prevailing
concept in both houses of Congress of the permissible and acceptable modes of reconciliation that their conference
committees may adopt, one whose undesirability is not all that patent if not, indeed, incapable of unquestionable
demonstration. The fact is that conference committees only take up bills which have already been freely and fully
discussed in both chambers of the legislature, but as to which there is need of reconciliation in view of "disagreeing
provisions" between them; and both chambers entrust the function of reconciling the bills to their delegates at a
conference committee with full awareness, and tacit consent, that conformably with established practice
unquestioningly observed over many years, new provisions may be included even if not within the "disagreeing
provisions" but of which, together with other changes, they will be given detailed and sufficiently explicit information
prior to voting on the conference committee version.
In any event, a fairly recent decision written for the Court by Senior Associate Justice Isagani A. Cruz, promulgated
on November 11, 1993 (G.R. No. 105371, The Philippine Judges Association, etc., et al. v. Hon. Pete Prado, etc., et
al.), should leave no doubt of the continuing vitality of the enrolled bill doctrine and give an insight into the nature of
the reconciling function of bicameral conference committees. In that case, a bilateral conference committee was
constituted and met to reconcile Senate Bill No. 720 and House Bill No. 4200. It adopted a "reconciled" measure that
was submitted to and approved by both chambers of Congress and ultimately signed into law by the President, as R.A.
No. 7354. A provision in this statute (removing the franking privilege from the courts, among others) was assailed as
being an invalid amendment because it was not included in the original version of either the senate or the house bill
and hence had generated no disagreement between them which had to be reconciled. The Court held:
 While it is true that a conference committee is the mechanism for compromising differences between
the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is
described thus:
A conference committee may deal generally with the subject matter or it may be limited to resolving
the precise differences between the two houses. Even where the conference committee is not by rule
limited in its jurisdiction, legislative custom severely limits the freedom with which new subject
matter can be inserted into the conference bill. But occasionally a conference committee produces
unexpected results, results beyond its mandate. These excursions occur even where the rules impose
strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian
power of conference committee (Davies, Legislative Law and Process: In A Nutshell, 1987 Ed., p.
81).
It is a matter of record that the Conference Committee Report on the bill in question was returned to
and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was
enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra
of the House of Representatives as having been duly passed by both Houses of Congress. It was then
presented to and approved by President Corazon C. Aquino on April 3, 1992.
Under the doctrine of separation of powers, the Court may not inquire beyond the certification of the
approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez
(7 SCRA 347) laid down the rule that the enrolled bill is conclusive upon the Judiciary (except in
matters that have to be entered in the journals like the yeas and nays on the final reading of the bill)
(Mabanag v. Lopez Vito, 78 Phil. 1). The journals are themselves also binding on the Supreme Court,
as we held in the old (but still valid) case of U.S. v. Pons (34 Phil. 729), where we explained the
reason thus:
To inquire into the veracity of the journals of the Philippine legislature when they are, as we have
said, clear and explicit, would be to violate both the letter and spirit of the organic laws by which the
Philippine Government was brought into existence, to invade a coordinate and independent
department of the Government, and to interfere with the legitimate powers and functions of the
Legislature. Applying these principles, we shall decline to look into the petitioners' charges that an
amendment was made upon the last reading of the bill that eventually R.A. No. 7354 and that copies
thereof in its final form were not distributed among the members of each House. Both the enrolled
bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with
Article VI, Sec. 26 (2) of the Constitution. We are bound by such official assurances from a
coordinate department of the government, to which we owe, at the very least, a becoming courtesy.
Withal, an analysis of the changes made by the conference committee in HB 11197 and SB 1630 by way of
reconciling their "disagreeing provisions," — assailed by petitioners as unauthorized or incongrouous — reveals that
many of the changes related to actual "disagreeing provisions," and that those that might perhaps be considered as
entirely new are nevertheless necessarily or logically connected with or germane to particular matters in the bills
being reconciled.
For instance, the change made by the bicameral conference committee (BCC) concerning amendments to Section 99
of the National Internal Revenue Code (NIRC) — the addition of "lessors of goods or properties and importers of
goods" — is really a reconciliation of disagreeing provisions, for while HB 11197 mentions as among those subject to
tax, "one who sells, barters, or exchanges goods or properties and any person who leases personal properties," SB
1630 does not. The change also merely clarifies the provision by providing that the contemplated taxpayers includes
"importers." The revision as regards the amendment to Section 100, NIRC, is also simple reconciliation, being nothing
more than the adoption by the BCC of the provision in HB 11197 governing the sale of gold to Bangko Sentral, in
contrast to SB 1630 containing no such provision. Similarly, only simple reconciliation was involved as regards
approval by the BCC of a provision declaring as not exempt, the sale of real properties primarily held for sale to
customers or held for lease in the ordinary course of trade or business, which provision is found in HB 11197 but not
in SB 1630; as regards the adoption by the BCC of a provision on life insurance business, contained in SB 1630 but
not found in HB 11197; as regards adoption by the BCC of the provision in SB 1630 for deferment of tax on certain
goods and services for no longer than 3 years, as to which there was no counterpart provision in SB 11197; and as
regards the fixing of a period for the adoption of implementing rules, a period being prescribed in SB 1630 and none
in HB 11197.
In respect of other revisions, it would seem that questions logically arose in the course of the discussion of specific
"disagreeing provisions" to which answers were given which, because believed acceptable to both houses of
Congress, were placed in the BCC draft. For example, during consideration of radio and television time (Sec. 100,
NIRC) dealt with in both House and Senate bills, the question apparently came up, the relevance of which is apparent
on its face, relative to satellite transmission and cable television time. Hence, a provision in the BCC bill on the
matter. Again, while deliberating on the definition of goods or properties in relation to the provision subjecting sales
thereof to tax, a question apparently arose, logically relevant, about real properties intended to be sold by a person in
economic difficulties, or because he wishes to buy a car, i.e., not as part of a business, the BCC evidently resolved to
clarify the matter by excluding from the tax, "real properties held primarily for sale to customers or held for lease in
the ordinary course of business." And in the course of consideration of the term,sale or exchange of services (Sec 102,
NIRC), the inquiry most probably was posed as to whether the term should be understood as including other services:
e.g., services of lessors of property whether real or personal, of warehousemen, of keepers of resthouses, pension
houses, inns, resorts, or of common carriers, etc., and presumably the BCC resolved to clarify the matter by including
the services just mentioned. Surely, changes of this nature are obviously to be expected in proceedings before
bicameral conference committees and may even be considered grist for their mill, given the history of such BCCs and
their general practice here and abroad
In any case, all the changes and revisions, and deletions, made by the conference committee were all subsequently
considered by and approved by both the Senate and the House, meeting and voting separately. It is an unacceptable
theorization, to repeat, that when the BCC report and its proposed bill were submitted to the Senate and the House, the
members thereof did not bother to read, or what is worse, having read did not understand, what was before them, or
did not realize that there were new provisions in the reconciled version unrelated to any "disagreeing provisions," or
that said new provisions or revisions were effectively concealed from them
Moreover, it certainly was entirely within the power and prerogative of either legislative chamber to reject the BCC
bill and require the organization of a new bicameral conference committee. That this option was not exercised by
either house only proves that the BCC measure was found to be acceptable as in fact it was approved and adopted by
both chambers.
I vote to DISMISS the petitions for lack of merit.

PADILLA, J.:
I
The original VAT law and the expanded VAT law
In Kapatiran v. Tan,1 where the ponente was the writer of this Separate Opinion, a unanimous Supreme Court en
banc upheld the validity of the original VAT law (Executive Order No. 273, approved on 25 July 1987). It will, in my
view, be pointless at this time to re-open arguments advanced in said case as to why said VAT law was invalid, and it
will be equally redundant to re-state the principles laid down by the Court in the same case affirming the validity of
the VAT law as a tax measure. And yet, the same arguments are, in effect, marshalled against the merits and substance
of the expanded VAT law (Rep. Act. No. 7716, approved on 5 May 1994). The same Supreme Court decision should
therefore dispose, in the main, of such arguments, for the expanded VAT law is predicated basically on the same
principles as the original VAT law, except that now the tax base of the VAT imposition has been expanded or
broadened.
It only needs to be stated - what actually should be obvious - that a tax measure, like the expanded VAT law (Republic
Act. No. 7716), is enacted by Congress and approved by the President in the exercise of the State's power to tax,
which is an attribute of sovereignty. And while the power to tax, if exercised without limit, is a power to destroy, and
should, therefore, not be allowed in such form, it has to be equally recognized that the power to tax is an essential
right of government. Without taxes, basic services to the people can come to a halt; economic progress will be stunted,
and, in the long run, the people will suffer the pains of stagnation and retrogression.
Consequently, upon careful deliberation, I have no difficulty in reaching the conclusion that the expanded VAT law
comes within the legitimate power of the state to tax. And as I had occasion to previously state:
 Constitutional Law, to begin with, is concerned with power not political convenience, wisdom,
exigency, or even necessity. Neither the Executive nor the legislative (Commission on Appointments)
can create power where the Constitution confers none."2
Likewise, in the first VAT case, I said:
In any event, if petitioners seriously believe that the adoption and continued application of the VAT
are prejudicial to the general welfare or the interests of the majority of the people, they should seek,
recourse and relief from the political branches of the government. The Court, following the time-
honored doctrine of separation of powers, cannot substitute its judgment for that of the President (and
Congress) as to the wisdom, justice and advisability of the adoption of the VAT. 3
This Court should not, as a rule, concern itself with questions of policy, much less, economic policy. That is better left
to the two (2) political branches of government. That the expanded VAT law is unwise, unpopular and even anti-poor,
among other things said against it, are arguments and considerations within the realm of policy-debate, which only
Congress and the Executive have the authority to decisively confront, alleviate, remedy and resolve.
II
The procedure followed in the approval of Rep. Act No. 7716
Petitioners however posit that the present case raises a far-reaching constitutional question which the Court is duty-
bound to decide under its expanded jurisdiction in the 1987 Constitution.4 Petitioners more specifically question and
impugn the manner by which the expanded VAT law (Rep. Act. No. 7716) was approved by Congress. They contend
that it was approved in violation of the Constitution from which fact it follows, as a consequence, that the law is null
and void. Main reliance of the petitioners in their assault in Section 24, Art. VI of the Constitution which provides:
Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bill of
local application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
While it should be admitted at the outset that there was no rigorous and strict adherence to the literal command of the
above provision, it may however be said, after careful reflection, that there was substantial compliance with the
provision.
There is no question that House Bill No. 11197 expanding the VAT law originated from the House of Representatives.
It is undeniably a House measure. On the other hand, Senate Bill No. 1129, also expanding the VAT law, originated
from the Senate. It is undeniably a Senate measure which, in point of time, actually antedated House Bill No. 11197.
But it is of record that when House Bill No. 11197 was, after approval by the House, sent to the Senate, it was referred
to, and considered by the Senate Committee on Ways and Means (after first reading) together with Senate Bill No.
1129, and the Committee came out with Senate Bill No. 1630 in substitution of Senate Bill No. 1129 but after
expressly taking into consideration House Bill No. 11197.
Since the Senate is, under the above-quoted constitutional provision, empowered to concur with a revenue measure
exclusively originating from the House, or to propose amendments thereto, to the extent of proposing amendments by
SUBSTITUTION to the House measure, the approval by the Senate of Senate Bill No. 1630, after it had considered
House Bill No. 11197, may be taken, in my view, as an AMENDMENT BY SUBSTITUTION by the Senate not only
of Senate Bill No. 1129 but of House Bill No. 11197 as well which, it must be remembered, originated exclusively
from the House.
But then, in recognition of the fact that House Bill No. 11197 which originated exclusively from the House and Senate
Bill No. 1630 contained conflicting provisions, both bills (House Bill No. 11197 and Senate Bill No. 1630) were
referred to the Bicameral Conference Committee for joint consideration with a view to reconciling their conflicting
provisions.
The Conference Committee came out eventually with a Conference Committee Bill which was submitted to both
chambers of Congress (the Senate and the House). The Conference Committee reported out a bill consolidating
provisions in House Bill No. 11197 and Senate Bill No. 1630. What transpired in both chambers after the Conference
Committee Report was submitted to them is not clear from the records in this case. What is clear however is that both
chambers voted separately on the bill reported out by the Conference Committee and both chambers approved the bill
of the Conference Committee.
To me then, what should really be important is that both chambers of Congress approved the bill reported out by the
Conference Committee. In my considered view, the act of both chambers of Congress in approving the Conference
Committee bill, should put an end to any inquiry by this Court as to how the bill came about. What is more, such
separate approvals CURED whatever constitutional infirmities may have arisen in the procedures leading to such
approvals. For, if such infirmities were serious enough to impugn the very validity of the measure itself, there would
have been an objection or objections from members of both chambers to the approval. The Court has been shown no
such objection on record in both chambers.
Petitioners contend that there were violations of Sec. 26 paragraph 2, Article VI of the Constitution which provides:
SEC. 26. ...
(2) No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be
allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in
the Journal.
in that, when Senate Bill No. 1630 (the Senate counterpart of House Bill No. 11197) was approved by the Senate, after
it had been reported out by the Senate Committee on Ways and Means, the bill went through second and third readings
on the same day (not separate days) and printed copies thereof in its final form were not distributed to the members of
the Senate at least three (3) days before its passage by the Senate. But we are told by the respondents that the reason
for this "short cut" was that the President had certified to the necessity of the bill's immediate enactment to meet an
emergency - a certification that, by leave of the same constitutional provision, dispensed with the second and third
readings on separate days and the printed form at least three (3) days before its passage.
We have here then a situation where the President did certify to the necessity of Senate Bill No. 1630's immediate
enactment to meet an emergency and the Senate responded accordingly. While I would be the last to say that this
Court cannot review the exercise of such power by the President in appropriate cases ripe for judicial review, I am not
prepared however to say that the President gravely abused his discretion in the exercise of such power as to require
that this Court overturn his action. We have been shown no fact or circumstance which would impugn the judgment of
the President, concurred in by the Senate, that there was an emergency that required the immediate enactment of
Senate Bill No. 1630. On the other hand, a becoming respect for a co-equal and coordinate department of government
points that weight and credibility be given to such Presidential judgment.
The authority or power of the Conference Committee to make insertions in and deletions from the bills referred to it,
namely, House Bill No. 11197 and Senate Bill No. 1630 is likewise assailed by petitioners. Again, what appears
important here is that both chambers approved and ratified the bill as reported out by the Conference Committee (with
the reported insertions and deletions). This is perhaps attributable to the known legislative practice of allowing a
Conference Committee to make insertions in and deletions from bills referred to it for consideration, as long as they
are germane to the subject matter of the bills under consideration. Besides, when the Conference Committee made the
insertions and deletions complained of by petitioners, was it not actually performing the task assigned to it of
reconciling conflicting provisions in House Bill No. 11197 and Senate Bill No. 1630?
This Court impliedly if not expressly recognized the fact of such legislative practice in Philippine Judges Association,
etc. vs. Hon. Peter Prado, etc., 5 In said case, we stated thus:
The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that
amendment to any bill when the House and the Senate shall have differences thereon may be settled
by a conference committee of both chambers. They stress that Sec. 35 was never a subject of any
disagreement between both Houses and so the second paragraph could not have been validly added as
an amendment.
These arguments are unacceptable.
While it is true that a conference committee is the mechanism for compromising differences between
the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is
described thus:
 ‘A conference committee may deal generally with the subject matter or it may be limited to resolving
the precise differences between the two houses. Even where the conference committee is not by rule
limited in its jurisdiction, legislative custom severely limits the freedom with which new subject
matter can be inserted into the conference bill. But occasionally a conference committee produces
unexpected results, results beyond its mandate. These excursions occurs even where the rules impose
strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian
power of conference committee (Davies, Legislative Law and Process: In A Nutshell, 1986 Ed., p.
81).’
It is a matter of record that the Conference Committee Report on the bill in question was returned to
and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was
enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra
of the House of Representatives as having been duly passed by both Houses of Congress. It was then
presented to and approved by President Corazon C. Aquino on April 3, 1992.
It would seem that if corrective measures are in order to clip the powers of the Conference Committee, the remedy
should come from either or both chambers of Congress, not from this Court, under the time-honored doctrine of
separation of powers.
Finally, as certified by the Secretary of the Senate and the Secretary General of the House of Representatives -
This Act (Rep. Act No. 7716) is a consolidation of House Bill No. 11197 and Senate Bill No. 1630
(w)as finally passed by the House of Representatives and the Senate on April 27, 1994 and May 2,
1994 respectively.
Under the long-accepted doctrine of the "enrolled bill," the Court in deference to a co-equal and coordinate branch of
government is held to a recognition of Rep. Act No. 7716 as a law validly enacted by Congress and, thereafter,
approved by the President on 5 May 1994. Again, we quote from out recent decision in Philippine Judges Association,
supra:
Under the doctrine of separation of powers, the Court may not inquire beyond the certification of the
approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v.
Gimenezlaid down the rule that the enrolled bill is conclusive upon the Judiciary (except in matters
that have to be entered in the journals like the yeas and nays on the finally reading of the bill). The
journals are themselves also binding on the Supreme Court, as we held in the old (but still valid) case
of U.S. vs. Pons,8 where we explained the reason thus:
‘To inquire into the veracity of the journals of the Philippine legislature when they are, as we have
said, clear and explicit, would be to violate both the letter and spirit of the organic laws by which the
Philippine Government was brought into existence, to invade a coordinate and independent
department of the Government, and to interfere with the legitimate powers and functions of the
Legislature.’
Applying these principles, we shall decline to look into the petitioners' charges that an amendment
was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies
thereof in its final form were not distributed among the members of each House. Both the enrolled
bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with
Article VI, Sec. 26(2) of the Constitution. We are bound by such official assurances from a
coordinate department of the government, to which we owe, at the very least, a becoming courtesy.
III
Press Freedom and Religious Freedom and Rep. Act No. 7716
The validity of the passage of Rep. Act No. 7716 notwithstanding, certain provisions of the law have to be examined
separately and carefully.
Rep. Act. No. 7716 in imposing a value-added tax on circulation income of newspapers and similar publications and
on income derived from publishing advertisements in newspapers 9, to my mind, violates Sec. 4, Art. III of the
Constitution. Indeed, even the Executive Department has tried to cure this defect by the issuance of the BIR
Regulation No. 11-94 precluding implementation of the tax in this area. It should be clear, however, that the BIR
regulation cannot amend the law (Rep. Act No. 7716). Only legislation (as distinguished from administration
regulation) can amend an existing law.
Freedom of the press was virtually unknown in the Philippines before 1900. In fact, a prime cause of the revolution
against Spain at the turn of the 19th century was the repression of the freedom of speech and expression and of the
press. No less than our national hero, Dr. Jose P. Rizal, in "Filipinas Despues de Cien Anos" (The Philippines a
Century Hence) describing the reforms sine quibus non which the Filipinos were insisting upon, stated: "The minister
... who wants his reforms to be reforms, must begin by declaring the press in the Philippines free ... ". 10
Press freedom in the Philippines has met repressions, most notable of which was the closure of almost all forms of
existing mass media upon the imposition of martial law on 21 September 1972.
Section 4, Art. III of the Constitution maybe traced to the United States Federal Constitution. The guarantee of
freedom of expression was planted in the Philippines by President McKinley in the Magna Carta of Philippine Liberty,
Instructions to the Second Philippine Commission on 7 April 1900.
The present constitutional provision which reads:
Sec. 4 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.
is essentially the same as that guaranteed in the U.S. Federal Constitution, for which reason, American case law giving
judicial expression as to its meaning is highly persuasive in the Philippines.
The plain words of the provision reveal the clear intention that no prior restraint can be imposed on the exercise of
free speech and expression if they are to remain effective and meaningful.
The U.S. Supreme Court in the leading case of Grosjean v. American Press Co. Inc @=. 11 declared a statute imposing a gross receipts
license tax of 2% on circulation and advertising income of newspaper publishers as constituting a prior restraint which is contrary to the guarantee of freedom of the press.

In Bantam Books, Inc. v. Sullivan 12, the U.S. Supreme Court stated: "Any system of prior restraint of expression
comes to this Court bearing a heavy presumption against its constitutionality."
In this jurisdiction, prior restraint on the exercise of free expression can be justified only on the ground that there is a
clear and present danger of a substantive evil which the State has the right to prevent 13.
In the present case, the tax imposed on circulation and advertising income of newspaper publishers is in the nature of
a prior restraint on circulation and free expression and, absent a clear showing that the requisite for prior restraint is
present, the constitutional flaw in the law is at once apparent and should not be allowed to proliferate.
Similarly, the imposition of the VAT on the sale and distribution of religious articles must be struck down for being
contrary to Sec. 5, Art. III of the Constitution which provides:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
That such a tax on the sale and distribution of religious articles is unconstitutional, has been long settled in American
Bible Society, supra.
Insofar, therefore, as Rep. Act No. 7716 imposes a value-added tax on the exercise of the above- discussed two (2)
basic constitutional rights, Rep. Act No. 7716 should be declared unconstitutional and of no legal force and effect.
IV
Petitions of CREBA and PAL and Rep. Act No. 7716
The Chamber of Real Estate and Builder's Association, Inc. (CREBA) filed its own petition (GR No. 11574) arguing
that the provisions of Rep. Act No. 7716 imposing a 10% value-added tax on the gross selling price or gross value in
money of every sale, barter or exchange of goods or properties (Section 2) and a 10% value-added tax on gross
receipts derived from the sale or exchange of services, including the use or lease of properties (Section 3), violate the
equal protection, due process and non-impairment provisions of the Constitution as well as the rule that taxation
should be uniform, equitable and progressive.
The issue of whether or not the value-added tax is uniform, equitable and progressive has been settled inKapatiran.
CREBA which specifically assails the 10% value-added tax on the gross selling price of real properties, fails to
distinguish between a sale of real properties primarily held for sale to customers or held for lease in the ordinary
course of trade or business and isolated sales by individual real property owners (Sec. 103[s]). That those engaged in
the business of real estate development realize great profits is of common knowledge and need not be discussed at
length here. The qualification in the law that the 10% VAT covers only sales of real property primarily held for sale to
customers, i.e. for trade or business thus takes into consideration a taxpayer's capacity to pay. There is no showing that
the consequent distinction in real estate sales is arbitrary and in violation of the equal protection clause of the
Constitution. The inherent power to tax of the State, which is vested in the legislature, includes the power to determine
whom or what to tax, as well as how much to tax. In the abseence o f a clear showing that the tax violates the due
process and equal protection clauses of the Constitution, this Court, in keeping with the doctrine of separation of
powers, has to defer to the discretion and judgment of Congress on this point.
Philippine Airlines (PAL) in a separate petition (G.R. No. 115852) claims that its franchise under PD No. 1590 which
makes it liable for a franchise tax of only 2% of gross revenues "in lieu of all the other fees and charges of any kind,
nature or description, imposed, levied, established, assessed or collected by any municipal, city, provincial, or national
authority or government agency, now or in the future," cannot be amended by Rep. Act No. 7716 as to make it (PAL)
liable for a 10% value-added tax on revenues, because Sec. 24 of PD No. 1590 provides that PAL's franchise can only
be amended, modified or repealed by a special law specifically for that purpose.
The validity of PAL's above argument can be tested by ascertaining the true intention of Congress in enacting Rep.
Act No. 7716. Sec. 4 thereof dealing with Exempt Transactions states:
Section 103. Exempt Transactions. - The following shall be exempt from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws, except those granted under Presidential
Decrees No. 66, 529, 972, 1491, 1590, ... " (Italics supplied)
The repealing clause of Rep. Act No. 7716 further reads:
Sec. 20. Repealing clauses. - The provisions of any special law relative to the rate of franchise taxes
are hereby expressly repealed.
xxx xxx xxx
All other laws, orders, issuances, rules and regulations or parts thereof inconsistent with this Act are
hereby repealed, amended or modified accordingly (italics supplied)
There can be no dispute, in my mind, that the clear intent of Congress was to modify PAL's franchise with respect to
the taxes it has to pay. To this extent, Rep. Act No. 7716 can be considered as a special law amending PAL's franchise
and its tax liability thereunder. That Rep. Act. No. 7716 imposes the value-added taxes on other subjects does not
make it a general law which cannot amend PD No. 1590.
To sum up: it is my considered view that Rep. Act No. 7716 (the expanded value-added tax) is a valid law, viewed
from both substantive and procedural standards, except only insofar as it violates Secs. 4 and 5, Art. III of the
Constitution (the guarantees of freedom of expression and the free exercise of religion). To that extent, it is, in its
present form, unconstitutional.
I, therefore, vote to DISMISS the petitions, subject to the above qualification.

VITUG, J.:
Lest we be lost by a quagmire of trifles, the real threshold and prejudicial issue, to my mind, is whether or not this
Court is ready to assume and to take upon itself with an overriding authority the owesome responsibility of overseeing
the entire bureaucracy. Far from it, ours is merely to construe and to apply the law regardless of its wisdom and
salutariness, and to strike it down only when it clearly disregards constitutional proscriptions. It is what the
fundamental law mandates, and it is what the Court must do. I cannot yet concede to the novel theory, so
challengingly provocative as it might be, that under the 1987 Constitution the Court may now at good liberty intrude,
in the guise of the people's imprimatur, into every affair of the government. What significance can still then remain, I
ask, of the time honored and widely acclaimed principle of separation of powers, if at every turn the Court allows
itself to pass upon, at will, the disposition of a co-equal, independent and coordinate branch in our system of
government. I dread to think of the so varied uncertainties that such an undue interference can lead to. The respect for
long standing doctrines in our jurisprudence, a nourished through time, is one of maturity not timidity, of stability
rather than quiescence.
It has never occurred to me, and neither do I believe it has been intended, that judicial tyranny is envisioned, let alone
institutionalized, by our people in the 1987 Constitution. The test of tyranny is not solely on how it is wielded but on
how, in the first place, it can be capable of being exercised. It is time that any such perception of judicial omnipotence
is corrected.
Against all that has been said, I see, in actuality in these cases at bench, neither a constitutional infringement of
substance, judging from precedents already laid down by this Court in previous cases, nor a justiciability even now of
the issues raised, more than an attempt to sadly highlight the perceived shortcomings in the procedural enactment of
laws, a matter which is internal to Congress and an area that is best left to its own basic concern. The fact of the matter
is that the legislative enactment, in its final form, has received the ultimate approval of both houses of Congress. The
finest rhetoric, indeed fashionable in the early part of this closing century, would still be a poor substitute for
tangibility. I join, nonetheless, some of my colleagues in respectfully inviting the kind attention of the honorable
members of our Congress in the suggested circumspect observance of their own rules.
A final remark. I should like to make it clear that this opinion does not necessarily foreclose the right, peculiar to any
taxpayer adversely affected, to pursue at the proper time, in appropriate proceedings, and in proper for a, the specific
remedies prescribed therefor by the National Internal Revenue Code, Republic Act 1125, and other laws, as well as
rules of procedure, such as may be pertinent. Some petitions filed with this Court are, in essence, although styled
differently, in the nature of declaratory relief over which this Court is bereft of original jurisdiction.
All considered, I, therefore, join my colleagues who are voting for the dismissal of the petitions.

CRUZ, J.:
It is a curious and almost incredible fact that at the hearing of these cases on July 7, 1994, the lawyers who argued for
the petitioners - two of them former presidents of the Senate and the third also a member of that body - all asked this
Court to look into the internal operations of their Chamber and correct the irregularities they claimed had been
committed there as well as in the House of Representatives and in the bicameral conference committee.
While a member of the legislative would normally resist such intervention and invoke the doctrine of separation of
powers to protect Congress from what he would call judicial intrusion, these counsel practically implored the Court to
examine the questioned proceedings and to this end go beyond the journals of each House, scrutinize the minutes of
the committee, and investigate all other matters relating to the passage of the bill (or bills) that eventually became
R.A. No. 7716.
In effect, the petitioners would have us disregard the time-honored inhibitions laid down by the Court upon itself in
the landmark case of U.S. v. Pons (34 Phil. 725), where it refused to consider extraneous evidence to disprove the
recitals in the journals of the Philippine Legislature that it had adjourned sine die at midnight of February 28, 1914.
Although it was generally known then that the special session had actually exceeded the deadline fixed by the
Governor-General in his proclamation, the Court chose to be guided solely by the legislative journals, holding
significantly as follows:
... From their very nature and object, the records of the legislature are as important as those of the
judiciary, and to inquire into the veracity of the journals of the Philippine Legislature, when they are,
as we have said, clear and explicit, would be to violate both the letter and the spirit of the organic
laws by which the Philippine Government was brought into existence, to invade a coordinate and
independent department of the Government, and to interfere with the legitimate powers and functions
of the Legislature. But counsel in his argument says that the public knows that the Assembly's clock
was stopped on February 28, 1914, at midnight and left so until the determination of the discussion of
all pending matters. Or, in other words, the hands of the clock were stayed in order to enable the
Assembly to effect an adjournment apparently within the fixed time by the Governor's proclamation
for the expiration of the special session, in direct violation of the Act of Congress of July 1, 1902. If
the clock was, in fact, stopped, as here suggested, "the resultant evil might be slight as compared with
that of altering the probative force and character of legislative records, and making the proof of
 legislative action depend upon uncertain oral evidence, liable to loss by death or absence, and so
imperfect on account of the treachery of memory.
... The journals say that the Legislature adjourned at 12 midnight on February 28, 1914. This settles
the question, and the court did not err in declining to go beyond the journals.
As one who has always respected the rationale of the separation of powers, I realize only too well the serious
implications of the relaxation of the doctrine except only for the weightiest of reasons. The lowering of the barriers
now dividing the three major branches of the government could lead to individious incursions by one department into
the exclusive domains of the other departments to the detriment of the proper discharge of the functions assigned to
each of them by the Constitution.
Still, while acknowledging the value of tradition and the reasons for judicial non-interference announced in Pons, I am
not disinclined to take a second look at the ruling from a more pragmatic viewpoint and to tear down, if we must, the
iron curtain it has hung, perhaps improvidently, around the proceedings of the legislature.
I am persuaded even now that where a specific procedure is fixed by the Constitution itself, it should not suffice for
Congress to simply say that the rules have been observed and flatly consider the matter closed. It does not have to be
as final as that. I would imagine that the judiciary, and particularly this Court, should be able to verify that statement
and determine for itself, through the exercise of its own powers, if the Constitution has, indeed, been obeyed.
In fact, the Court had already said that the question of whether certain procedural rules have been followed is
justiciable rather than political because what is involved is the legality and not the wisdom of the act in question. So
we ruled in Sanidad v. Commission on Elections (73 SCRA 333) on the amendment of the Constitution; in Daza v.
Singson (180 SCRA 496) on the composition of the Commission on Appointments; and in the earlier case ofTañada v.
Cuenco (100 SCRA 1101) on the organization of the Senate Electoral Tribunal, among several other cases.
By the same token, the ascertainment of whether a bill underwent the obligatory three readings in both Houses of
Congress should not be considered an invasion of the territory of the legislature as this would not involve an inquiry
into its discretion in approving the measure but only the manner in which the measure was enacted.
These views may upset the conservatives among us who are most comfortable when they allow themselves to be
petrified by precedents instead of venturing into uncharted waters. To be sure, there is much to be said of the wisdom
of the past expressed by vanished judges talking to the future. Via trita est tuttisima. Except when there is a need to
revise them because of an altered situation or an emergent idea, precedents should tell us that, indeed, the trodden path
is the safest path.
It could be that the altered situation has arrived to welcome the emergent idea. The jurisdiction of this Court has been
expanded by the Constitution, to possibly include the review the petitioners would have us make of the congressional
proceedings being questioned. Perhaps it is also time to declare that the activities of Congress can no longer be
smoke-screened in the inviolate recitals of its journals to prevent examination of its sacrosanct records in the name of
the separation of powers.
But then again, perhaps all this is not yet necessary at this time and all these observations are but wishful musings for
a more activist judiciary. For I find that this is not even necessary, at least for me, to leave the trodden path in the
search for new adventures in the byways of the law. The answer we seek, as I see it, is not far afield It seems to me
that it can be found through a study of the enrolled bill alone and that we do not have to go beyond that measure to
ascertain if R.A. No. 7716 has been validly enacted.
It is settled in this jurisdiction that in case of conflict between the enrolled bill and the legislative journals, it is the
former that should prevail except only as to matters that the Constitution requires to be entered in the journals.
(Mabanag v. Lopez Vito, 78 Phil. 1). These are the yeas and nays on the final reading of a bill or on any question at
the request of at least one-fifth of the member of the House (Constitution, Art. VI, Sec. 16[4]), the objections of the
President to a vetoed bill or item (Ibid, Sec. 27 [1]), and the names of the members voting for or against the overriding
of his veto (Id. Section 27 [1]), The original of a bill is not specifically required by the Constitution to be entered in
the journals. Hence, on this particular manner, it is the recitals in the enrolled bill and not in the journals that must
control.
Article VI, Section 24, of the Constitution provides:
 Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
The enrolled bill submitted to and later approved by the President of the Philippines as R.A. No. 7716 was signed by
the President of the Senate and the Speaker of the House of Representatives. It carried the following certification over
the signatures of the Secretary of the Senate and the Acting Secretary of the House of Representatives:
This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 11630 was finally
passed by the House of Representative and the Senate on April 27, 1994, and May 2, 1994.
Let us turn to Webster for the meaning of certain words,
To "originate" is "to bring into being; to create something (original); to invent; to begin; start." The word
"exclusively" means "excluding all others" and is derived from the word "exclusive," meaning "not shared or divided;
sole; single." Applying these meanings, I would read Section 24 as saying that the bills mentioned therein must be
brought into being, or created, or invented, or begun or started, only or singly or by no other body than the house of
Representatives.
According to the certification, R.A. No. 7716 "is a consolidation of House Bill No. 11197 and Senate Bill No. 1630."
Again giving the words used their natural and ordinary sense conformably to an accepted canon of construction, I
would read the word "consolidation" as a "combination or merger" and derived from the word "consolidated,"
meaning "to combine into one; merge; unite."
The two bills were separately introduced in their respective Chambers. Both retained their independent existence until
they reached the bicameral conference committee where they were consolidated. It was this consolidated measure that
was finally passed by Congress and submitted to the President of the Philippines for his approval.
House Bill No. 11197 originated in the House of Representatives but this was not the bill that eventually became R.A.
No. 7716. The measure that was signed into law by President Ramos was the consolidation of that bill and another
bill, viz., Senate Bill No. 1630, which was introduced in the Senate. The resultant enrolled bill thus did not
originate exclusively in the House of Representatives. The enrolled bill itself says that part of it (and it does not matter
to what extent) originated in the Senate.
It would have been different if the only participation of the Senate was in the amendment of the measure that was
originally proposed in the House of Representatives. But this was not the case. The participation of the Senate was not
in proposing or concurring with amendments that would have been incorporated in House Bill No. 11197. Its
participation was in originating its own Senate Bill No. 1630, which was not embodied in but merged with House Bill
No. 11197.
Senate Bill No. 1630 was not even an amendment by substitution, assuming this was permissible. To "substitute"
means "to take the place of; to put or use in place of another." Senate Bill No. 1630 did not, upon its approval replace
(and thus eliminate) House Bill No. 11197. Both bills retained their separate identities until they were joined or united
into what became the enrolled bill and ultimately R.A. No. 7716.
The certification in the enrolled bill says it all. It is clear that R.A. No. 7716 did not originate exclusively in the House
of Representatives.
To go back to my earlier observations, this conclusion does not require the reversal of U.S. vs. Pons and an inquiry by
this Court into the proceedings of the legislature beyond the recitals of its journals. All we need to do is consider the
certification in the enrolled bill and, without entering the precincts of Congress, declare that by this own admission it
has, indeed, not complied with the Constitution.
While this Court respects the prerogatives of the other departments, it will not hesitate to rise to its higher duty to
require from them, if they go astray, full and strict compliance with the fundamental law. Our fidelity to it must be
total. There is no loftier principle in our democracy than the supremacy of the Constitution, to which all must submit.
I vote to invalidate R.A. No. 7716 for violation of Article VI, Sec. 24, of the Constitution.

REGALADO, J.:
It would seem like an inconceivable irony that Republic Act No. 7716 which, so respondents claim, was conceived by
the collective wisdom of a bicameral Congress and crafted with sedulous care by two branches of government should
now be embroiled in challenges to its validity for having been enacted in disregard of mandatory prescriptions of the
Constitution itself. Indeed, such impugnment by petitioners goes beyond merely the procedural flaws in the parturition
of the law. Creating and regulating as it does definite rights to property, but with its own passage having been violative
of explicit provisions of the organic law, even without going into the intrinsic merits of the provisions of Republic Act
No. 7716 its substantive invalidity is pro facto necessarily entailed.
How it was legislated into its present statutory existence is not in serious dispute and need not detain us except for a
recital of some salient and relevant facts. The House of Representatives passed House Bill No. 11197 1 on third
reading on November 17, 1993 and, the following day, It transmitted the same to the Senate for concurrence. On its
part, the Senate approved Senate Bill No. 1630 on second and third readings on March 24, 1994. It is important to
note in this regard that on March 22, 1994, said S.B. No. 1630 had been certified by President Fidel V. Ramos for
immediate enactment to meet a public emergency, that is, a growing budgetary deficit. There was no such certification
for H.B. No. 11197 although it was the initiating revenue bill.
It is, therefore, not only a curious fact but, more importantly, an invalid procedure since that Presidential certification
was erroneously made for and confined to S.B. No. 1630 which was indisputably a tax bill and, under the
Constitution, could not validly originate in the Senate. Whatever is claimed in favor of S.B. No. 1630 under the
blessings of that certification, such as its alleged exemption from the three separate readings requirement, is
accordingly negated and rendered inutile by the inefficacious nature of said certification as it could lawfully have been
issued only for a revenue measure originating exclusively from the lower House. To hold otherwise would be to
validate a Presidential certification of a bill initiated in the Senate despite the Constitutional prohibition against its
originating therefrom.
Equally of serious significance is the fact that S.B. No. 1630 was reported out in Committee Report No. 349 submitted
to the Senate on February 7, 1994 and approved by that body "in substitution of S.B. No. 1129," while merely "taking
into consideration P.S. No. 734 and H.B. No. 11197." 2 S.B. No. 1630, therefore, was never filed in substitution of
either P.S. No. 734 or, more emphatically, of H.B. No. 11197 as these two legislative issuances were merely taken
account of, at the most, as referential bases or materials.
This is not a play on misdirection for, in the first instance, the respondents assure us that H.B. No. 11197 was actually
the sole source of and started the whole legislative process which culminated in Republic Act No. 7716. The
participation of the Senate in enacting S.B. No. 1630 was, it is claimed, justified as it was merely in pursuance of its
power to concur in or propose amendments to H.B. No. 11197. Citing the 83-year old case of Flint vs. Stone Tracy
Co., 3 it is blithely announced that such power to amend includes an amendment by substitution, that is, even the
extent of substituting the entire H.B. No. 11197 by an altogether completely new measure of Senate provenance. Ergo,
so the justification goes, the Senate acted perfectly in accordance with its amending power under Section 24, Article
VI of the Constitution since it merely proposed amendments through a bill allegedly prepared in advance.
This is a mode of argumentation which, by reason of factual inaccuracy and logical implausibility, both astounds and
confounds. For, it is of official record that S.B. No. 1630 was filed, certified and enacted in substitution of S.B. No.
1129 which in itself was likewise in derogation of the Constitutional prohibition against such initiation of a tax bill in
the Senate. In any event, S.B. No. 1630 was neither intended as a bill to be adopted by the Senate nor to be referred to
the bicameral conference committee as a substitute for H.B. No. 11197. These indelible facts appearing in official
documents cannot be erased by any amount of strained convolutions or incredible pretensions that S.B. No. 1630 was
supposedly enacted in anticipation of H.B. No. 11197.
On that score alone, the invocation by the Solicitor General of the hoary concept of amendment by substitution falls
flat on its face. Worse, his concomitant citation of Flint to recover from that prone position only succeeded in turning
the same postulation over, this time supinely flat on its back. As elsewhere noted by some colleagues, which I will just
refers to briefly to avoid duplication, respondents initially sought sanctuary in that doctrine supposedly laid down
in Flint, thus: "It has, in fact, been held that the substitution of an entirely new measure for the one originally proposed
can be supported as a valid amendment." 4 (Italics supplied.) During the interpellation by the writer at the oral
argument held in these cases, the attention of the Solicitor General was called to the fact that the amendment
in Flint consisted only of a single item, that its, the substitution of a corporate tax for an inheritance tax proposed in a
general revenue bill; and that the text of the decision therein nowhere contained the supposed doctrines he quoted and
ascribed to the court, as those were merely summations of arguments of counsel therein. It is indeed a source of
disappointment for us, but an admission of desperation on his part, that, instead of making a clarification or a defense
of his contention, the Solicitor General merely reproduced all over again 5 the same quotations as they appeared in his
original consolidated comment, without venturing any explanation or justification.
The aforestated dissemblance, thus unmasked, has further undesirable implications on the contentions advanced by
respondents in their defense. For, even indulging respondents ex gratia argumenti in their pretension that S.B. No.
1630 substituted or replaced H.B. No. 11197, aside from muddling the issue of the true origination of the disputed law,
this would further enmesh respondents in a hopeless contradiction.
In a publication authorized by the Senate and from which the Solicitor General has liberally quoted, it is reported as
an accepted rule therein that "(a)n amendment by substitution when approved takes the place of the principal bill. C.R.
March 19, 1963." 6 Stated elsewise, the principal bill is supplanted and goes out of actuality. Applied to the present
situation, and following respondents' submission that H.B. No. 11197 had been substituted or replaced in its entirety,
then in law it had no further existence for purposes of the subsequent stages of legislation except, possibly, for
referential data.
Now, the enrolled bill thereafter submitted to the President of the Philippines, signed by the President of the Senate
and the Speaker of the House of Representatives, carried this solemn certification over the signatures of the respective
secretaries of both chambers: "This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 1630
was finally passed by the House of Representatives and the Senate on April 27, 1994, and May 2, 1994." (Italics
mine.) In reliance thereon, the Chief Executive signed the same into law as Republic Act No. 7716.
The confusion to which the writer has already confessed is now compounded by that official text of the aforequoted
certification which speaks, and this cannot be a mere lapsus calami, of two independent and existingbills (one of them
being H.B. No. 11197) which were consolidated to produce the enrolled bill. In parliamentary usage, to consolidate
two bills, is to unite them into one 7 and which, in the case at bar, necessarily assumes that H.B. No. 11197 never
became legally inexistent. But did not the Solicitor General, under the theory of amendment by substitution of the
entire H.B. No. 11197 by S.B. No. 1630, thereby premise the same upon the replacement, hence the total elimination
from the legislative process, of H.B. 11197?
It results, therefore, that to prove compliance with the requirement for the exclusive origination of H.B. No. 11197,
two alternative but inconsistent theories had to be espoused and defended by respondents' counsel. To justify the
introduction and passage of S.B. No. 1630 in the Senate, it was supposedly enacted only as an amendment by
substitution, hence on that theory H.B. No. 11197 had to be considered as displaced and terminated from its role or
existence. Yet, likewise for the same purpose but this time on the theory of origination by consolidation, H.B. No.
11197 had to be resuscitated so it could be united or merged with S.B. No. 1630. This latter alternative theory,
unfortunately, also exacerbates the constitutional defect for then it is an admission of a dual origination of the two tax
bills, each respectively initiated in and coming from the lower and upper chambers of Congress.
Parenthetically, it was also this writer who pointedly brought this baffling situation to the attention of the Solicitor
General during the aforesaid oral argument, to the extent of reading aloud the certification in full. We had hoped
thereby to be clarified on these vital issue in respondents' projected memorandum, but we have not been favored with
an explanation unraveling this delimma. Verily, by passing sub silentio on these intriguing submissions, respondents
have wreaked havoc on both logic and law just to gloss over their non-compliance with the Constitutional mandate for
exclusive origination of a revenue bill. The procedure required therefor, we emphatically add, can be satisfied only by
complete and strict compliance since this is laid down by the Constitution itself and not by a mere statute.
This writer consequently agrees with the clearly tenable proposition of petitioners that when the Senate passed and
approved S.B. No. 1630, had it certified by the Chief Executive, and thereafter caused its consideration by the
bicameral conference committee in total substitution of H.B. No. 11197, it clearly and deliberately violated the
requirements of the Constitution not only in the origination of the bill but in the very enactment of Republic Act No.
7716. Contrarily, the shifting sands of inconsistency in the arguments adduced for respondents betray such lack of
intellectual rectitude as to give the impression of being mere rhetorics in defense of the indefensible.
We are told, however, that by our discoursing on the foregoing issues we are introducing into non-justiciable areas
long declared verboten by such time-honored doctrines as those on political questions, the enrolled bill theory and the
respect due to two co-equal and coordinate branches of Government, all derived from the separation of powers
inherent in republicanism. We appreciate the lectures, but we are not exactly unaware of the teachings inU.S. vs.
Pons, 8 Mabanag, vs. Lopez Vito, 9 Casco Philippine Chemical Co.,. vs. Gimenez, etc., et al., 10 Morals vs.
Subido, etc., 11 and Philippine Judges Association, etc., et al. vs. Prado, etc., et al., 12 on the one hand, andTañada, et
al. vs. Cuenco, et al., 13 Sanidad, et al., vs. Commission on Elections, et al., 14 and Daza vs. Singson, et al., 15 on the
other, to know which would be applicable to the present controversy and which should be rejected.
But, first, a positional exordium. The writer of this opinion would be among the first to acknowledge and enjoin not
only courtesy to, but respect for, the official acts of the Executive and Legislative departments, but only so long as the
same are in accordance with or are defensible under the fundamental charter and the statutory law. He would readily
be numbered in the ranks of those who would preach a reasoned sermon on the separation of powers, but with the
qualification that the same are not contained in tripartite compartments separated by empermeable membranes. He
also ascribes to the general validity of American constitutional doctrines as a matter of historical and legal necessity,
but not to the extent of being oblivious to political changes or unmindful of the fallacy of undue generalization arising
from myopic disregard of the factual setting of each particular case.
These ruminations have likewise been articulated and dissected by my colleagues, hence it is felt that the only issue
which must be set aright in this dissenting opinion is the so-called enrolled bill doctrine to which we are urged to cling
with reptilian tenacity. It will be preliminarily noted that the official certification appearing right on the face of
Republic Act No. 7716 would even render unnecessary any further judicial inquiry into the proceedings which
transpired in the two legislative chambers and, on a parody of tricameralism, in the bicameral conference committee.
Moreover, we have the excellent dissertations of some of my colleagues on these matters, but respondents insist en
contra that the congressional proceedings cannot properly be inquired into by this Court. Such objection confirms a
suppressive pattern aimed at sacrificing the rule of law to the fiat of expediency.
Respondents thus emplaced on their battlements the pronouncement of this Court in the aforecited case ofPhilippine
Judges Association vs. Prado. 16 Their reliance thereon falls into the same error committed by their seeking refuge in
the Flint case, ante. which, as has earlier been demonstrated (aside from the quotational misrepresentation), could not
be on par with the factual situation in the present case. Flint, to repeat, involved a mere amendment on a single
legislative item, that is, substituting the proposal therein of an inheritance tax by one on corporate tax. Now, in their
submission based on Philippine Judges Association, respondents studiously avoid mention of the fact that the
questioned insertion referred likewise to a single item, that is, the repeal of the franking privilege thretofore granted to
the judiciary. That both cases cannot be equated with those at bar, considering the multitude of items challenged and
the plethora of constitutional violations involved, is too obvious to belabor. Legal advocacy and judicial adjudication
must have a becoming sense of qualitative proportion, instead of lapsing into the discredited and maligned practice of
yielding blind adherence to precedents.
The writer unqualifiedly affirms his respect for valid official acts of the two branches of government and eschews any
unnecessary intrusion into their operational management and internal affairs. These, without doubt, are matters
traditionally protected by the republican principle of separation of powers. Where, however, there is an overriding
necessity for judicial intervention in light of the pervasive magnitude of the problems presented and the gravity of the
constitutional violations alleged, but this Court cannot perform its constitutional duty expressed in Section 1, Article
VIII of the Constitution unless it makes the inescapable inquiry, then the confluence of such factors should compel an
exception to the rule as an ultimate recourse. The cases now before us present both the inevitable challenge and the
inescapable exigency for judicial review. For the Court to now shirk its bounden duty would not only project it as a
citadel of the timorous and the slothful, but could even undermine its raison d'etre as the highest and ultimate tribunal.
Hence, this dissenting opinion has touched on events behind and which transpired prior to the presentation of the
enrolled bill for approval into law. The details of that law which resulted from the legislative action followed by both
houses of Congress, the substantive validity of whose provisions and the procedural validity of which legislative
process are here challenged as unconstitutional, have been graphically presented by petitioners and admirably
explained in the respective opinions of my brethren. The writer concurs in the conclusions drawn therefrom and
rejects the contention that we have unjustifiably breached the dike of the enrolled bill doctrine.
Even in the land of its source, the so-called conclusive presumption of validity originally attributed to that doctrine
has long been revisited and qualified, if not altogether rejected. On the competency of judicial inquiry, it has been held
that "(u)nder the 'enrolled bill rule' by which an enrolled bill is sole expository of its contents and conclusive evidence
of its existence and valid enactment, it is nevertheless competent for courts to inquire as to what prerequisites are
fixed by the Constitution of which journals of respective houses of Legislature are required to furnish the evidence." 17
In fact, in Gwynn vs. Hardee, etc., et al., 18 the Supreme Court of Florida declared:
(1) While the presumption is that the enrolled bill, as signed by the legislative officers and filed with
the secretary of state, is the bill as it passed, yet this presumption is not conclusive, and when it is
 shown from the legislative journals that a bill though engrossed and enrolled, and signed by the
legislative officers, contains provisions that have not passed both houses, such provisions will be held
spurious and not a part of the law. As was said by Mr. Justice Cockrell in the case of Wade vs.
Atlantic Lumber Co., 51 Fla. 628, text 633, 41 So. 72, 73:
‘This Court is firmly committed to the holding that when the journals speak they control, and against
such proof the enrolled bill is not conclusive.'
More enlightening and apropos to the present controversy is the decision promulgated on May 13, 1980 by the
Supreme Court of Kentucky in D & W Auto Supply, et al. vs. Department of Revenue, et al., 19 pertinent exceprts
wherefrom are extensively reproduced hereunder:
... In arriving at our decision we must, perforce, reconsider the validity of a long line of decisions of
this court which created and nurtured the so-called 'enrolled bill' doctrine.
xxx xxx xxx
[1] Section 46 of the Kentucky Constitution sets out certain procedures that the legislature must
follow before a bill can be considered for final passage. ... .
xxx xxx xxx
... Under the enrolled bill doctrine as it now exists in Kentucky, a court may not look behind such a
bill, enrolled and certified by the appropriate officers, to determine if there are any defects.
xxx xxx xxx
... In Lafferty, passage of the law in question violated this provision, yet the bill was properly enrolled
and approved by the governor. In declining to look behind the law to determine the propriety of its
enactment, the court enunciated three reasons for adopting the enrolled bill rule. First, the court was
reluctant to scrutinize the processes of the legislature, an equal branch of government. Second,
reasons of convenience prevailed, which discouraged requiring the legislature to preserve its records
and anticipated considerable complex litigation if the court ruled otherwise. Third, the court
acknowledged the poor record-keeping abilities of the General Assembly and expressed a preference
for accepting the final bill as enrolled, rather than opening up the records of the legislature. ... .
xxx xxx xxx
Nowhere has the rule been adopted without reason, or as a result of judicial whim. There are four
historical bases for the doctrine. (1) An enrolled bill was a 'record' and, as such, was not subject to
attack at common law. (2) Since the legislature is one of the three branches of government, the
courts, being coequal, must indulge in every presumption that legislative acts are valid. (3) When the
rule was originally formulated, record-keeping of the legislatures was so inadequate that a balancing
of equities required that the final act, the enrolled bill, be given efficacy. (4) There were theories of
convenience as expressed by the Kentucky court in Lafferty.
The rule is not unanimous in the several states, however, and it has not been without its critics. From
an examination of cases and treaties, we can summarize the criticisms as follows: (1) Artificial
presumptions, especially conclusive ones, are not favored. (2) Such a rule frequently (as in the
present case) produces results which do not accord with facts or constitutional provisions. (3) The
rule is conducive to fraud, forgery, corruption and other wrongdoings. (4) Modern automatic and
electronic record-keeping devices now used by legislatures remove one of the original reasons for the
rule. (5) The rule disregards the primary obligation of the courts to seek the truth and to provide a
remedy for a wrong committed by any branch of government. In light of these considerations, we are
convinced that the time has come to re-examine the enrolled bill doctrine.
[2] This court is not unmindful of the admonition of the doctrine of stare decisis. The maxim is "Stare
decisis et non quieta movere," which simply suggests that we stand by precedents and not disturb
settled points of law. Yet, this rule is not inflexible, nor is it of such a nature as to require
perpetuation of error or logic. As we stated in Daniel's Adm'r v. Hoofnel, 287 Ky 834, 155 S.W. 2d
469, 471-72 (1941) (citations omitted):
 The force of the rule depends upon the nature of the question to be decided and the extent of the
disturbance of rights and practices which a change in the interpretation of the law or the course of
judicial opinions may create. Cogent considerations are whether there is clear error and urgent
reasons 'for neither justice nor wisdom requires a court to go from one doubtful rule to another,' and
whether or not the evils of the principle that has been followed will be more injurious than can
possibly result from a change.
Certainly, when a theory supporting a rule of law is not grounded on facts, or upon sound logic, or is unjust, or has
been discredited by actual experience, it should be discarded, and with it the rule it supports.
[3] It is clear to us that the major premise of the Lafferty decision, the poor record- keeping of the
legislature, has disappeared. Modern equipment and technology are the rule in record-keeping by our
General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment,
printing presses, computers, electronic voting machines, and the like remove all doubts and fears as
to the ability of the General Assembly to keep accurate and readily accessible records.
It is also apparent that the 'convenience' rule is not appropriate in today's modern and developing
judicial philosophy. The fact that the number and complexity of lawsuits may increase is not
persuasive if one is mindful that the overriding purpose of our judicial system is to discover the truth
and see that justice is done. The existence of difficulties and complexities should not deter this
pursuit and we reject any doctrine or presumption that so provides.
Lastly, we address the premises that the equality of the various branches of government requires that
we shut our eyes to constitutional failings and other errors of our coparceners in government. We
simply do not agree. Section 26 of the Kentucky Constitution provides that any law contrary to the
constitution is 'void.' The proper exercise of judicial authority requires us to recognize any law which
is unconstitutional and to declare it void. Without belaboring the point, we believe that under section
228 of the Kentucky Constitution it is our obligation to 'support ... the Constitution of the
commonwealth.' We are sworn to see that violations of the constitution - by any person, corporation,
state agency or branch of government - are brought to light and corrected. To countenance an
artificial rule of law that silences our voices when confronted with violations of our constitution is
not acceptable to this court.
We believe that a more reasonable rule is the one which Professor Sutherland describes as the
'extrinsic evidence' rule ... Under this approach there is a prima facie presumption that an enrolled bill
is valid, but such presumption may be overcome by clear, satisfactory and convincing evidence
establishing that constitutional requirements have not been met.
We therefore overrule Lafferty v. Huffman and all other cases following the so-called enrolled bill
doctrine, to the extent that there is no longer a conclusive presumption that an enrolled bill is valid. ...
(Italics mine.)
Undeniably, the value-added tax system may have its own merits to commend its continued adoption, and the
proposed widening of its base could achieve laudable governmental objectives if properly formulated and
conscientiously implemented. We would like to believe, however, that ours is not only an enlightened democracy
nurtured by a policy of transparency but one where the edicts of the fundamental law are sacrosanct for all, barring
none. While the realization of the lofty ends of this administration should indeed be the devout wish of all, likewise
barring none, it can never be justified by methods which, even if unintended, are suggestive of Machiavellism.
Accordingly, I vote to grant the instant petitions and to invalidate Republic Act No. 7716 for having been enacted in
violation of Section 24, Article VI of the Constitution.

DAVIDE, JR., J.:

The legislative history of R.A. No. 7716, as highlighted in the Consolidated Memorandum for the public respondents
submitted by the Office of the Solicitor General, demonstrates beyond doubt that it was passed in violation or
deliberate disregard of mandatory provisions of the Constitution and of the rules of both chambers of Congress
relating to the enactment of bills.
I therefore vote to strike down R.A. No. 7716 as unconstitutional and as having been enacted with grave abuse of
discretion.
The Constitution provides for a bicameral Congress. Therefore, no bill can be enacted into law unless it is approved
by both chambers -- the Senate and the House of Representatives (hereinafter House). Otherwise stated, each chamber
may propose and approve a bill, but until it is submitted to the other chamber and passed by the latter, it cannot be
submitted to the President for its approval into law.
Paragraph 2, Section 26, Article VI of the Constitution provides:
No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be
allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in
the journal.
The "three readings" refers to the three readings in both chambers.
There are, however, bills which must originate exclusively in the House. Section 24, Article VI of the Constitution
enumerates them:
SEC. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills
of local application, and private bills shall originate exclusively in the House of Representatives, but
the Senate may propose or concur with amendments.
Webster's Third New International Dictionary 1 defines originate as follows:
vt 1: to cause the beginning of: give rise to: INITIATE ... 2. to start (a person or thing) on a course or
journey ... vi: to take or have origin: be derived: ARISE, BEGIN, START ...
Black's Law Dictionary 2 defines the word exclusively in this wise:
Apart from all others; only; solely; substantially all or for the greater part. To the exclusion of all
others; without admission of others to participation; in a manner to exclude.
In City Mayor vs. The Chief of Philippine Constabulary, @= 3 this Court said:
The term 'exclusive' in its usual and generally accepted sense, means possessed to the exclusion of
others; appertaining to the subject alone, not including, admitting or pertaining to another or others,
undivided, sole. (15 Words and Phrases, p. 510, citing Mitchel v. Tulsa Water, Light, Heat and Power
Co., 95 P. 961, 21 Okl. 243; and p. 513, citing Commonwealth v. Superintendent of House of
Correction, 64 Pa. Super. 613, 615).
Indisputably then, only the House can cause the beginning or initiate the passage of any appropriation, revenue, or
tarriff bill, any bill increasing the public debt, any bill of local application, or any private bill. The Senate can only
"propose or concur with amendments."
Under the Rules of the Senate, the first reading is the reading of the title of the bill and its referral to the corresponding
committee; the second reading consists of the reading of the bill in the form recommended by the corresponding
committee; and the third reading is the reading of the bill in the form it will be after approval on second
reading. 4 During the second reading, the following takes place;
(1) Second reading of the bill;
(2) Sponsorship by the Committee Chairman or any member designated by the corresponding
committee;
(3) If a debate ensues, turns for and against the bill shall be taken alternately;
(4) The sponsor of the bill closes the debate;
(5) After the close of the debate, the period of amendments follows:
(6) Then, after the period of amendments is closed, the voting the bill on second reading. 5
After approval on second readings, printed copies thereof in its final form shall be distributed to the Members of the
Senate at least three days prior to the third reading, the final vote shall be taken and the yeas and nays shall be entered
in the Journal. 6
Under the Rules of the House, the first reading of a bill consists of a reading of the number, title, and author followed
by the referral to the appropriate committees; 7 the second reading consists of the reading in full of the bill with the
amendments proposed by the committee, it any; 8 and the third reading is the reading of the bill in the form as
approved on second reading and takes place only after printed copies thereof in its final form have been distributed to
the Members at least three days before, unless the bill is certified. 9 At the second reading, the following takes place:
(1) Reading of the bill;
(2) Sponsorship;
3) Debates;
(4) Period of Amendments; and
(5) Voting on Second Reading. 10
At the third reading, the votes shall be taken immediately and the yeas and nays entered in the Journal. 11
Clearly, whether in the Senate or in the House, every bill must pass the three readings on separate days, except when
the bill is certified. Amendments to the bill on third reading are constitutionally prohibited. 12
After its passage by one chamber, the bill should then be transmitted to the other chamber for its concurrence. Section
83, Rule XIV of the Rules of the House expressly provides:
SEC. 83. Transmittal to Senate. -- The Secretary General, without need of express order, shall
transmit to the Senate for its concurrence all the bills and joint or concurrent resolutions approved by
the House or the amendments of the House to the bills or resolutions of the Senate, or if amendments
of the Senate to bills of the House are accepted, he shall forthwith notify the Senate of the action
taken.
Simplified, this rule means that:
1. As to a bill originating in the House:
(a) Upon its approval by the House, the bill shall be transmitted to the Senate;
(b) The Senate may approve it with or without amendments;
(c) The Senate returns the bill to the House;
(d) The House may accept the Senate amendments; if it does not, the Secretary General shall notify
the Senate of that action. As hereinafter be shown, a request for conference shall then be in order.
2. As to bills originating in the Senate;
(a) Upon its approval by the Senate, the bill shall be transmitted to the House;
(b) The House may approve it with or without amendments;
(c) The House then returns it to the Senate, informing it of the action taken;
(d) The Senate may accept the House amendements; if it does not, it shall notify the House and make
a request for conference.
The transmitted bill shall then pass three readings in the other chamber on separate days. Section 84, Rule XIV of the
Rules of the House states:
SEC. 84. Bills from the Senate. -- The bills, resolutions and communications of the Senate shall be
referred to the corresponding committee in the same manner as bills presented by Members of the
House.
and Section 51, Rule XXII of the Rules of the Senate provides:
 SEC. 51. Prior to their final approval, bills and joint resolutions shall be read at least three times." It
is only when the period of disagreement is reached, i.e., amendments proposed by one chamber to a
bill originating from the other are not accepted by the latter, that a request for conference is made or
is in order. The request for conference is specifically covered by Section 26, Rule XI of the Rules of
the Senate which reads:
It is only when the period of disagreement is reached, i.e., amended proposed by one chamber to a bill originating
from the other are not accepted by their latter, that a request for conference is made or is in order. The request for
conference is specifically covered by Section 26, Rule XII of the Rules of the Senate which reads:
SEC. 26. In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference committee of
both Houses which shall meet within ten days after its composition.
and Section 85, Rule XIV of the Rules of the House which reads:
SEC. 85. Conference Committee Reports. -- In the event that the House does not agree with the
Senate on the amendments to any bill or joint resolution, the differences may be settled by conference
committees of both Chambers.
The foregoing provisions of the Constitution and the Rules of both chambers of Congress are mandatory.
In his Treatise On the Constitutional Limitations, 13 more particularly on enactment of bill, Cooley states:
Where, for an instance, the legislative power is to be exercised by two houses, and by settled and
well-understood parliamentary law these two houses are to hold separate sessions for their
deliberations, and the determination of the one upon a proposes law is to be submitted to the separate
determination of the other, the constitution, in providing for two houses, has evidently spoken in
reference to this settled custom, incorporating it as a rule of constitutional interpretation; so that it
would require no prohibitory clause to forbid the two houses from combining in one, and jointly
enacting laws by the vote of a majority of all. All those rules which are of the essentials of law-
making must be observed and followed; and it is only the customary rules of order and routine, such
as in every deliberative body are always understood to be under its control, and subject to constant
change at its will, that the constitution can be understood to have left as matters of discretion, to be
established, modified, or abolished by the bodies for whose government in non-essential matters they
exist.
In respect of appropriation, revenue, or tariff bills, bills increasing the public debt, bills of local application, or private
bills, the return thereof to the House after the Senate shall have "proposed or concurred with amendments" for the
former either to accept or reject the amendments would not only be in conformity with the foregoing rules but is also
implicit from Section 24 of Article VI.
With the foregoing as our guiding light, I shall now show the violations of the Constitution and of the Rules of the
Senate and of the House in the passage of R.A. No. 7716.
VIOLATIONS OF SECTION 24, ARTICLE VI
OF THE CONSTITUTION:
First violation. -- Since R.A. No. 7716 is a revenue measure, it must originate exclusively in the House -- not in the
Senate. As correctly asserted by petitioner Tolentino, on the face of the enrolled copy of R.A. No. 7716, it is a
"CONSOLIDATION OF HOUSE BILL NO. 11197 AND SENATE BILL NO. 1630." In short, it is an illicit marriage
of a bill which originated in the House and a bill which originated in the Senate. Therefore, R.A. No. 7716 did not
originate exclusively in the House.
The only bill which could serve as a valid basis for R.A. No. 7716 is House Bill (HB) No. 11197. This bill, which is
the substitute bill recommended by the House Committee on Ways and Means in substitution of House Bills Nos. 253,
771, 2450, 7033, 8086, 9030, 9210, 9397, 10012, and 10100, and covered by its Committee Report No. 367,14 was
approved on third reading by the House on 17 November 1993. 15 Interestingly, HB No. 9210, 16 which was filed by
Representative Exequiel B. Javier on 19 May 1993, was certified by the President in his letter to Speaker Jose de
Venecia, Jr. of 1 June 1993. 17 Yet, HB No. 11197, which substituted HB No. 9210 and the others above-stated, was
not. Its certification seemed to have been entirely forgotten.
On 18 November 1993, the Secretary-General of the House, pursuant to Section 83, Rule XIV of the Rules of the
House, transmitted to the President of the Senate HB No. 11197 and requested the concurrence of the Senate
therewith. 18
However, HB No. 11197 had passed only its first reading in that Senate by its referral to its Committee on Ways and
Means. That Committee never deliberated on HB No. 11197 as it should have. It acted only on Senate Bill (SB) No.
1129 19 introduced by Senator Ernesto F. Herrera on 1 March 1993. It then prepared and proposed SB No. 1630, and
in its Committee Report No. 349 20 which was submitted to the Senate on 7 February 1994, 21 it recommended that SB
No. 1630 be approved "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No.
11197." 22 It must be carefully noted that SB No. 1630 was proposed and submitted for approval by the Senate in
SUBSTITUTION of SB No. 1129, and not HB No. 11197. Obviously, the principal measure which the Committee
deliberated on and acted upon was SB No. 1129 and not HB No. 11197. The latter, instead of being the only measure
to be taken up, deliberated upon, and reported back to the Senate for its consideration on second reading and,
eventually, on third reading, was, at the most, merely given by the Committee a passing glance.
This specific unequivocal action of the Senate Committee on Ways and Means, i.e., proposing and recommending
approval of SB No. 1630 as a substitute for or in substitution of SB No. 1129 demolishes at once the thesis of the
Solicitor General that:
Assuming that SB 1630 is distinct from HB 11197, amendment by substitution is within the purview
of Section 24, Article VI of the Constitution.
because, according to him, (a) "Section 68, Rule XXIX of the Rules of the Senate authorizes an amendment by
substitution and the only condition required is that "the text thereof is submitted in writing'; and (b) '[I]n Flint vs.
Stone Tracy Co. (220 U.S. 107) the United Stated Supreme Court, interpreting the provision in the United States
Constitution similar to Section 24, Article VI of the Philippine Constitution, stated that the power of the Senate to
amend a revenue bill includes substitution of an entirely new measure for the one originally proposed by the House of
Representatives.'" 23
This thesis is utterly without merit. In the first place, it reads into the Committee Report something which it had not
contemplated, that is, to propose SB No. 1630 in substitution of HB No. 11197; or speculates that the Committee may
have committed an error in stating that it is SB No. 1129, and not HB No. 11197, which is to be substituted by SB No.
1630. Either, of course, is unwarranted because the words of the Report, solemnly signed by the Chairman, Vice-
Chairman (who dissented), seven members, and three ex-officio members, 24 leave no room for doubt that although SB
No. 1129, P.S. Res No. 734, and HB No. 11197 were referred to and considered by the Committee, it had prepared the
attached SB No. 1630 which it recommends for approval "in substitution of S.B. No. 11197, taking into consideration
P.S. No. 734 and H.B. No. 11197 with Senators Herrera, Angara, Romulo, Sotto, Ople and Shahani as authors." To do
as suggested would be to substitute the judgment of the Committee with another that is completely inconsistent with
it, or, simply, to capriciously ignore the facts.
In the second place, the Office of the Solicitor General intentionally made it appear, to mislead rather than to persuade
us, that in Flint vs. Stone Tracy Co. 25 The U.S. Supreme Court ruled, as quoted by it in the Consolidated
Memorandum for Respondents, as follows: 26
The Senate has the power to amend a revenue bill. This power to amend is not confined to the
elimination of provisions contained in the original act, but embraces as well the addition of such
provisions thereto as may render the original act satisfactory to the body which is called upon to
support it. It has, in fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment.
xxx xxx xxx
It is contended in the first place that this section of the act is unconstitutional, because it is a revenue
measure, and originated in the Senate in violation of Section 7 of article 1 of the Constitution,
providing that 'all bills for raising revenue shall originate in the House of Representatives, but the
Senate may propose or concur with the amendments, as on other bills.'
The first part is not a statement of the Court, but a summary of the arguments of counsel in one of the companion
cases (No. 425, entitled, "Gay vs. Baltic Mining Co."). The second part is the second paragraph of the opinion of the
Court delivered by Mr. Justice Day. The misrepresentation that the first part is a statement of the Court is highly
contemptuous. To show such deliberate misrepresentation, it is well to quote what actually are found in 55 L.Ed. 408,
410, to wit:
Messrs. Charles A. Snow and Joseph H. Knight filed a brief for appellees in No. 425:
xxx xxx xxx
The Senate has the power to amend a revenue bill. This power to amend is not confined to the
elimination of provisions contained in the original act, but embraces as well the addition of such
provisions thereto as may render the original act satisfactory to the body which is called upon to
support it. It has, in fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment.
Brake v. Collison, 122 Fed. 722.
Mr. James L. Quackenbush filed a statement for appellees in No. 442.
Solicitor General Lehmann (by special leave) argued the cause for the United States on reargument.
Mr. Justice Day delivered the opinion of the court:
These cases involve the constitutional validity of 38 of the act of Congress approved August 5, 1909,
known as 'the corporation tax' law. 36 Stat. at L. 11, 112-117, chap. 6, U.S. Comp. Stat. Supp. 1909,
pp. 659, 844-849.
It is contended in the first place that this section of the act is unconstitutional, because it is a revenue
measure, and originated in the Senate in violation of 7 of article 1 of the Constitution, providing the
'all bills for raising revenue shall originate in the House of Representatives, but the Senate may
propose or concur with the amendments, as on other bills.' The history of the act is contained in the
government's brief, and is accepted as correct, no objection being made to its accuracy.
This statement shows that the tariff bill of which the section under consideration is a part, originated
in the House of Representatives, and was there a general bill for the collection of revenue. As
originally introduced, it contained a plan of inheritance taxation. In the Senate the proposed tax was
removed from the bill, and the corporation tax, in a measure, substituted therefor. The bill having
properly originated in the House, we perceive no reason in the constitutional provision relied upon
why it may not be amended in the Senate in the manner which it was in this case. The amendment
was germane to the subject-matter of the bill, and not beyond the power of the Senate to propose.
(Italics supplied)
xxx xxx xxx
As shown above, the underlined portions were deliberately omitted in the quotation made by the Office of the
Solicitor General.
In the third place, a Senate amendment by substitution with an entirely new bill of a bill, which under Section 24,
Article VI of the Constitution can only originate exclusively in the House, is not authorized by said Section 24. Flint
vs. Stone Tracy Co. cannot be invoked in favor of such a view. As pointed out by Mr. Justice Florenz D. Regalado
during the oral arguments of these cases and during the initial deliberations thereon by the Court, Flint involves a
Senate amendment to a revenue bill which, under the United States Constitution, should originate from the House of
Representatives. The amendment consisted of the substitution of a corporation tax in lieu of the plan of inheritance
taxation contained in a general bill for the collection of revenue as it came from the House of Representatives where
the bill originated. The constitutional provision in question is Section 7, Article I of the United States Constitution
which reads:
Section 7. Bills and Resolutions. -- All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments, as on other Bills.
This provision, contrary to the misleading claim of the Solicitor General, is not similar to Section 24, Article VI of our
Constitution, which for easy comparison is hereunder quoted again:
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
Note that in the former the word exclusively does not appear. And, in the latter, the phrase "as on other Bill," which is
found in the former, does not appear. These are very significant in determining the authority of the upper chamber
over the bills enumerated in Section 24. Since the origination is not exclusively vested in the House of
Representatives of the United States, the Senate's authority to propose or concur with amendments is necessarily
broader. That broader authority is further confirmed by the phrase "as on other Bills," i.e., its power to propose or
concur with amendments thereon is the same as in ordinary bills. The absence of this phrase in our Constitution was
clearly intended to restrict or limit the Philippine Senate's power to propose or concur with amendments. In the light
of the exclusivity of origination and the absence of the phrase "as on other Bills," the Philippine Senate cannot amend
by substitution with an entirely new bill of its own any bill covered by Section 24 of Article VI which the House of
Representatives transmitted to it because such substitution would indirectly violate Section 24.
These obvious substantive differences between Section 7, Article I of the U.S. Constitution and Section 24, Article VI
of our Constitution are enough reasons why this Court should neither allow itself to be misled by Flint vs. Stonenor be
awed by Rainey vs. United States 27 and the opinion of Messrs. Ogg and Ray 28 which the majority cites to support the
view that the power of the U.S. Senate to amend a revenue measure is unlimited. Rainey concerns the Tariff Act of
1909 of the United States of America and specifically involved was its Section 37 which was an amendment
introduced by the U.S. Senate. It was claimed by the petitioners that the said section is a revenue measure which
should originate in the House of Representatives. The U.S. Supreme Court, however, adopted and approved the
finding of the court a quo that:
the section in question is not void as a bill for raising revenue originating in the Senate, and not in the
House of Representatives. It appears that the section was proposed by the Senate as an amendment to
a bill for raising revenue which originated in the House. That is sufficient.
Messrs. Ogg and Ray, who are professors emeritus of political science, based their statement not even on a case
decided by the U.S. Supreme Court but on their perception of what Section 7, Article I of the U.S. Constitution
permits. In the tenth edition (1951) of their work, they state:
Any bill may make its first appearance in either house, except only that bills for raising revenue are
required by the constitution to 'originate' in the House of Representatives. Indeed, through its right to
amend revenue bills, even to the extent of substituting new ones, the Senate may, in effect, originate
them also. 29
Their "in effect" conclusion is, of course, logically correct because the word exclusively does not appear in said
Section 7, Article I of the U.S. Constitution.
Neither can I find myself in agreement with the view of the majority that the Constitution does not prohibit the filing
in the Senate of a substitute bill in anticipation of its receipt of the bill from the House so long as action by the Senate
as a body is withheld pending receipt of the House bill, thereby stating, in effect, that S.B. No. 1129 was such an
anticipatory substitute bill, which, nevertheless, does not seem to have been considered by the Senate except only after
its receipt of H.B. No. 11179 on 23 November 1993 when the process of legislation in respect of it began with a
referral to the Senate Committee on Ways and Means. Firstly, to say that the Constitution does not prohibit it is to
render meaningless Section 24 of Article VI or to sanction its blatant disregard through the simple expedient of filing
in the Senate of a so-called anticipatory substitute bill. Secondly, it suggests that S.B. No. 1129 was filed as an
anticipatory measure to substitute for H.B. No. 11179. This is a speculation which even the author of S.B. No. 1129
may not have indulged in. S.B. No. 1129 was filed in the Senate by Senator Herrera on 1 March 1993. H.B. No. 11197
was approved by the House on third reading only on 17 November 1993. Frankly, I cannot believe that Senator
Herrera was able to prophesy that the House would pass any VAT bill, much less to know its provisions. That "it does
not seem that the Senate even considered" the latter not until after its receipt of H.B. No. 11179 is another speculation.
As stated earlier, S.B. No. 1129 was filed in the Senate on 1 March 1993, while H.B. No. 11197 was transmitted to the
Senate only on 18 November 1993. There is no evidence on record to show that both were referred to the Senate
Committee on Ways and Means at the same time. Finally, in respect of H.B. No. 11197, its legislative process did not
begin with its referral to the Senate's Ways and Means Committee. It began upon its filing, as a Committee Bill of the
House of Committee on Ways and Means, in the House.
Second violation. -- Since SB No. 1129 is a revenue measure, it could not even be validly introduced or initiated in the
Senate. It follows too, that the Senate cannot validly act thereon.
Third violation. -- Since SB No. 1129 could not have been validly introduced in the Senate and could not have been
validly acted on by the Senate, then it cannot be substituted by another revenue measure, SB No. 1630, which the
Senate Committee on Ways and Means introduced in substitution of SB No. 1129. The filing or introduction in the
Senate of SB No. 1630 also violated Section 24, Article VI of the Constitution.
VIOLATIONS OF SECTION 26(2), ARTICLE VI
OF THE CONSTITUTION:
First violation. -- The Senate, despite its lack of constitutional authority to consider SB No. 1630 or SB No. 1129
which the former substituted, opened deliberations on second reading of SB No. 1630 on 8 February 1994. On 24
March 1994, the Senate approved it on second reading and on third reading. 30 That approval on the same day violated
Section 26(2), Article VI of the Constitution. The justification therefor was that on 24 February 1994 the President
certified to "the necessity of the enactment of SB No. 1630 ... to meet a public emergency." 31
I submit, however, that the Presidential certification is void ab initio not necessarily for the reason adduced by
petitioner Kilosbayan, Inc., but because it was addressed to the Senate for a bill which is prohibited from originating
therein. The only bill which could be properly certified on permissible constitutional grounds even if it had already
been transmitted to the Senate is HB No. 11197. As earlier observed, this was not so certified, although HB No. 9210
(one of those consolidated into HB No. 11197) was certified on 1 June 1993. 32
Also, the certification of SB No. 1630 cannot, by any stretch of the imagination, be extended to HB No. 11197
because SB No. 1630 did not substitute HB No. 11197 but SB No. 1129.
Considering that the certification of SB No. 1630 is void, its approval on second and third readings in one day
violated Section 26(2), Article VI of the Constitution.
Second violation. -- It further appears that on 24 June 1994, after the approval of SB No. 1630, the Secretary of the
Senate, upon directive of the Senate President, formally notified the House Speaker of the Senate's approval thereof
and its request for a bicameral conference "in view of the disagreeing provisions of said bill and House Bill No.
11197." 33
It must be stressed again that HB No. 11197 was never submitted for or acted on second and third readings in the
Senate, and SB No. 1630 was never sent to the House for its concurrence. Elsewise stated, both were only half-way
through the legislative mill. Their submission to a conference committee was not only anomalously premature, but
violate of the constitutional rule on three readings.
The suggestion that SB No. 1630 was not required to be submitted to the House for otherwise the procedure would be
endless, is unacceptable for, firstly, it violates Section 26, Rule XII of the Rules of the Senate and Section 85, Rule
XIV of the Rules of the House, and, secondly, it is never endless. If the chamber of origin refuses to accept the
amendments of the other chamber, the request for conference shall be made.
VIOLATIONS OF THE RULES OF BOTH CHAMBERS;
GRAVE ABUSE OF DISCRETION.
The erroneous referral to the conference committee needs further discussion. Since S.B. No. 1630 was not a substitute
bill for H.B. No. 11197 but for S.B. No. 1129, it (S.B. No. 1630) remained a bill which originated in the Senate. Even
assuming arguendo that it could be validly initiated in the Senate, it should have been first transmitted to the House
where it would undergo three readings. On the other hand, since HB No. 11197 was never acted upon by the Senate on
second and third readings, no differences or inconsistencies could as yet arise so as to warrant a request for a
conference. It should be noted that under Section 83, Rule XIV of the Rules of the House, it is only when the Senate
shall have approved with amendments HB no. 11197 and the House declines to accept the amendments after having
been notified thereof that the request for a conference may be made by the House, not by the Senate. Conversely, the
Senate's request for a conference would only be proper if, following the transmittal of SB No. 1630 to the House, it
was approved by the latter with amendments but the Senate rejected the amendments.
Indisputably then, when the request for a bicameral conference was made by the Senate, SB No. 1630 was not yet
transmitted to the House for consideration on three readings and HB No. 11197 was still in the Senate awaiting
consideration on second and third readings. Their referral to the bicameral conference committee was palpably
premature and, in so doing, both the Senate and the House acted without authority or with grave abuse of discretion.
Nothing, and absolutely nothing, could have been validly acted upon by the bicameral conference committee.
GRAVE ABUSE OF DISCRETION COMMITTED BY
THE BICAMERAL CONFERENCE COMMITTEE.
Serious irregularities amounting to lack of jurisdiction or grave abuse of discretion were committed by the bicameral
conference committee.
First, it assumed, and took for granted that SB No. 1630 could validly originate in the Senate. This assumption is
erroneous.
Second, it assumed that HB No. 11197 and SB No. 1630 had properly passed both chambers of Congress and were
properly and regularly submitted to it. As earlier discussed, the assumption is unfounded in fact.
Third, per the bicameral conference committee's proceedings of 19 April 1994, Representative Exequiel Javier,
Chairman of the panel from the House, initially suggested that HB No. 11197 should be the "frame of reference,"
because it is a revenue measure, to which Senator Ernesto Maceda concurred. However, after an incompletely
recorded reaction of Senator Ernesto Herrera, Chairman of the Senate panel, Representative Javier seemed to agree
that "all amendments will be coming from the Senate." The issue of what should be the "frame of reference" does not
appear to have been resolved. These facts are recorded in this wise, as quoted in the Consolidated Memorandum for
Respondents: 34
CHAIRMAN JAVIER.
First of all, what would be the basis, no, or framework para huwag naman mawala yung personality
namin dito sa bicameral, no, because the bill originates from the House because this is a revenue bill,
so we would just want to ask, we make the House Bill as the frame of reference, and then everything
will just be inserted?
HON. MACEDA.
Yes. That's true for every revenue measure. There's no other way. The House Bill has got to be the
base. Of course, for the record, we know that this is an administration; this is certified by the
President and I was about to put into the records as I am saying now that your problem about the
impact on prices on the people was already decided when the President and the administration sent
this to us and certified it. They have already gotten over that political implication of this bill and the
economic impact on prices.
CHAIRMAN HERRERA.
Yung concern mo about the bill as the reference in this discussion is something that we can just ...
CHAIRMAN JAVIER.
We will just ... all the amendments will be coming from the Senate.
(BICAMERAL CONFERENCE ON MAJOR DIFFERENCES BETWEEN HB NO. 11197 AND SB
NO. 1630 [Cte. on Ways & Means] APRIL 19, 1994, II-6 and II-7; Italics supplied)
These exchanges would suggest that Representative Javier had wanted HB No. 11197 to be the principal measure on
which reconciliation of the differences should be based. However, since the Senate did not act on this Bill on second
and third readings because its Committee on Ways and Means did not deliberate on it but instead proposed SB No.
1630 in substitution of SB No. 1129, the suggestion has no factual basis. Then, when finally he agreed that "all
amendments will be coming from the Senate," he in fact withdrew the former suggestion and agreed that SB No.
1630, which is the Senate version of the Value Added Tax (VAT) measure, should be the "frame of reference." But
then SB No. 1630 was never transmitted to the House for the latter's concurrence. Hence, it cannot serve as the "frame
of reference" or as the basis for deliberation. The posture taken by Representative Javier also indicates that SB No.
1630 should be taken as the amendment to HB No. 11197. This, too, is unfounded because SB No. 1630 was not
proposed in substitution of HB No. 11197.
Since SB No. 1630 did not pass three readings in the House and HB No. 11197 did not pass second and third readings
in the Senate, it logically follows that no disagreeing provisions had as yet arisen. The bicameral conference
committee erroneously assumed the contrary.
Even granting arguendo that both HB No. 11197 and SB No. 1630 had been validly approved by both chambers of
Congress and validly referred to the bicameral conference committee, the latter had very limited authority thereon. It
was created "in view of the disagreeing provisions of" the two bills. 35 Its duty was limited to the reconciliation of
disagreeing provisions or the resolution of differences or inconsistencies. The committee recognized that limited
authority in the opening paragraph of its Report 36 when it said:
The Conference Committee on the disagreeing provisions of House Bill No. 11197 ... and Senate Bill
No. 1630 ... .
Under such limited authority, it could only either (a) restore, wholly or partly, the specific provisions of HB No. 11197
amended by SB No. 1630, (b) sustain, wholly or partly, the Senate's amendments, or (c) by way of a compromise, to
agree that neither provisions in HB No. 11197 amended by the Senate nor the latter's amendments thereto be carried
into the final form of the former.
But as pointed out by petitioners Senator Raul Roco and Kilosbayan, Inc., the bicameral conference committee not
only struck out non-disagreeing provisions of HB No. 11197 and SB No. 1630, i.e., provisions where both bills are in
full agreement; it added more activities or transactions to be covered by VAT, which were not within the
contemplation of both bills.
Since both HB No. 11197 and SB No. 1630 were still half-cooked in the legislative vat, and were not ready for referral
to a conference, the bicameral conference committee clearly acted without jurisdiction or with grave abuse of
discretion when it consolidated both into one bill which became R.A. No. 7716.
APPROVAL BY BOTH CHAMBERS OF CONFERENCE
COMMITTEE REPORT AND PROPOSED BILL DID
NOT CURE CONSTITUTIONAL INFIRMITIES.
I cannot agree with the suggestion that since both the Senate and the House had approved the bicameral conference
committee report and the bill proposed by it in substitution of HB No. 11197 and SB No. 1630, whatever infirmities
may have been committed by it were cured by ratification. This doctrine of ratification may apply to minor procedural
flaws or tolerable breachs of the parameters of the bicameral conference committee's limited powers but never to
violations of the Constitution. Congress is not above the Constitution. In the instant case, since SB No. 1630 was
introduced in violation of Section 24, Article VI of the Constitution, was passed in the Senate in violation of the "three
readings" rule, and was not transmitted to the House for the completion of the constitutional process of legislation,
and HB No. 11197 was not likewise passed by the Senate on second and third readings, neither the Senate nor the
House could validly approve the bicameral conference committee report and the proposed bill.
In view of the foregoing, the conclusion is inevitable that for non-compliance with mandatory provisions of the
Constitution and of the Rules of the Senate and of the House on the enactment of laws, R.A. No. 7716 is
unconstitutional and, therefore, null and void. A discussion then of the instrinsic validity of some of its provisions
would be unnecessary.
The majority opinion, however, invokes the enrolled bill doctrine and wants this Court to desist from looking behind
the copy of the assailed measure as certified by the Senate President and the Speaker of the House. I respectfully
submit that the invocation is misplaced. First, as to the issue of origination, the certification in this case explicitly
states that R.A. No. 7716 is a "consolidation of House Bill No. 11197 and Senate Bill No. 1630." This is conclusive
evidence that the measure did not originate exclusively in the House. Second, the enrolled bill doctrine is of American
origin, and unquestioned fealty to it may no longer be justified in view of the expanded jurisdiction 37 of this Court
under Section 1, Article VIII of our Constitution which now expressly grants authority to this Court to:
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
Third, even under the regime of the 1935 Constitution which did not contain the above provision, this Court, through
Mr. Chief Justice Makalintal, in Astorga vs. Villegas, 38 declared that it cannot be truly said that Mabanag vs. Lopez
Vito 39 has laid to rest the question of whether the enrolled bill doctrine or the journal entry rule should be adhered to
in this jurisdiction, and stated:
As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the
presiding officers. It is merely a mode of authentication. The lawmaking process in Congress ends
when the bill is approved by both Houses, and the certification does not add to the validity of the bill
or cure any defect already present upon its passage. In other words, it is the approval of Congress and
not the signatures of the presiding officers that is essential. Thus the (1935) Constitution says that
'[e]very bill passed by the Congress shall, before it becomes a law, be presented to the President.'
 In Brown vs. Morris, supra, the Supreme Court of Missouri, interpreting a similar provision in the
State Constitution, said that the same 'makes it clear that the indispensable step in the passage' and it
follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding officer, other
proof that it has 'passed both houses will satisfy the constitutional requirement.'
Fourth, even in the United States, the enrolled bill doctrine has been substantially undercut. This is shown in the
disquisitions of Mr. Justice Reynato S. Puno in his dissenting opinion, citing Sutherland, Statutory Construction.
Last, the pleadings of the parties have established beyond doubt that HB No. 11197 was not acted on second and third
readings in the Senate and SB No. 1630, which was approved by the Senate on second and third readings in
substitution of SB No. 1129, was never transmitted to the House for its passage. Otherwise stated, they were only
passed in their respective chamber of origin but not in the other. In no way can each become a law under paragraph 2,
Section 26, Article VI of the Constitution. For the Court to close its eyes to this fact because of the enrolled bill
doctrine is to shrink its duty to hold "inviolate what is decreed by the Constitution." 40
I vote then to GRANT these petitions and to declare R.A. No. 7716 as unconstitutional.

ROMERO, J.:
Few issues brought before this Court for resolution have roiled the citizenry as much as the instant case brought by
nine petitioners which challenges the constitutionality of Republic Act No. 7716 (to be referred to herein as the
"Expanded Value Added Tax" or EVAT law to distinguish it from Executive Order No. 273 which is the VAT law
proper) that was enacted on May 5, 1994. A visceral issue, it has galvanized the populace into mass action and strident
protest even as the EVAT proponents have taken to podia and media in a post facto information campaign.
The Court is confronted here with an atypical case. Not only is it a vatful of seething controversy but some unlikely
petitioners invoke unorthodox remedies. Three Senator-petitioners would nullify a statute that bore the indispensable
stamp of approval of their own Chamber with two of them publicly repudiating what they had earlier endorsed. With
two former colleagues, one of them an erstwhile Senate President, making common cause with them, they would stay
the implementation by the Executive Department of a law which they themselves have initiated. They address a prayer
to a co-equal Department to probe their official acts for any procedural irregularities they have themselves committed
lest the effects of these aberrations inflict such damage or irreparable loss as would bring down the wrath of the
people on their heads.
To the extent that they perceive that a vital cog in the internal machinery of the Legislature has malfunctioned from
having operated in blatant violation of the enabling Rules they have themselves laid down, they would now plead that
this other Branch of Government step in, invoking the exercise of what is at once a delicate and awesome power.
Undoubtedly, the case at bench is as much a test for the Legislature as it is for the Judiciary.
A backward glance on the Value Added Tax (VAT) is in order at this point.
The first codification of the country's internal revenue laws was effected with the enactment of Commonwealth Act
No. 466, commonly known as the 'National Internal Revenue Code' which was approved on June 15, 1939 and took
effect on July 1, 1939, although the provisions on the income tax were made retroactive to January 1, 1939.
Since 1939 when the turnover tax was replaced by the manufacturer's sales tax, the Tax Code had
provided for a single-stage value-added tax on original sales by manufacturers, producers and
importers computed on the 'cost deduction method' and later, on the basis of the 'tax credit method.'
The turnover tax was re-introduced in 1985 by Presidential Decree No. 1991 (as amended by
Presidential Decree No. 2006). 1
In 1986, a tax reform package was approved by the Aquino Cabinet. It contained twenty-nine measures, one of which
proposed the adoption of the VAT, as well as the simplification of the sales tax structure and the abolition of the
turnover tax.
Up until 1987, the system of taxing goods consisted of (a) an excise tax on certain selected articles
(b) fixed and percentage taxes on original and subsequent sales, on importations and on milled
articles and (c) mining taxes on mineral products. Services were subjected to percentage taxes based
mainly on gross receipts. 2
On July 25, 1987, President Corazon C. Aquino signed into law Executive Order No. 273 which adopted the VAT.
From the former single-stage value-added tax, it introduced the multi-stage VAT system where "the value-added tax is
imposed on the sale of and distribution process culminating in sale, to the final consumer. Generally described, the
taxpayer (the seller) determines his tax liability by computing the tax on the gross selling price or gross receipt
("output tax") and subtracting or crediting the earlier VAT on the purchase or importation of goods or on the sale of
service ("input tax") against the tax due on his own sale." 3
On January 1, 1988, implementing rules and regulations for the VAT were promulgated. President Aquino then issued
Proclamation No. 219 on February 12, 1988 urging the public and private sectors to join the nationwide consumers'
education campaign for VAT.
Soon after the implementation of Executive Order No. 273, its constitutionality was assailed before this Court in the
case of Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc., et al. v. Tan. 4 The four petitioners sought
to nullify the VAT law "for being unconstitutional in that its enactment is not allegedly within the powers of the
President; that the VAT is oppressive, discriminatory, regressive, and violates the due process and equal protection
clauses and other provisions of the 1987 Constitution." 5 In dismissing the consolidated petitions, this Court stated:
The Court, following the time-honored doctrine of separation of powers cannot substitute its
judgment for that of the President as to the wisdom, justice and advisability of the VAT. The Court
can only look into and determine whether or not Executive Order No. 273 was enacted and made
effective as law, in the manner required by and consistent with, the Constitution, and to make sure
that it was not issued in grave abuse of discretion amounting to lack or excess of jurisdiction; and, in
this regard, the Court finds no reason to impede its application or continued implementation. 6
Although declared constitutional, the VAT law was sought to be amended from 1992 on by a series of bills filed in
both Houses of Congress. In chronological sequence, these were:
HB/SB No. - Date Filed in Congress
HB No. 253 - July 22, 1992
HB No. 771 - August 10, 1992
HB No. 2450 - September 9, 1992
Senate Res. No. 734 7 - September 10, 1992
HB No. 7033 - February 3, 1993
SB No. 1129 8 - March 1, 1993
HB No. 8086 - March 9, 1993
HB No. 9030 - May 11, 1993
HB No. 9210 9 - May 19, 1993
HB No. 9297 - May 25, 1993
HB No. 10012 - July 28, 1993
HB No. 10100 - August 3, 1993
HB No. 11197 in
substitution of
HB Nos. 253, 771,
2450, 7033, 8086,
9030, 9210, 9297
10012 and 10100 10 - November 5, 1993
We now trace the course taken by H.B. No. 11197 and S.B. No. 1129.
HB/SB No.
HB No. 11197 was approved in
the Lower House on
second reading - November 11, 1993
HB No. 11197 was approved in
the Lower House on third
reading and voted upon
with 114 Yeas and 12 Nays - November 17, 1993
HB No. 11197 was transmitted
to the Senate - November 18, 1993
Senate Committee on Ways and
Means submitted Com.
Report No. 349 recommeding
for approval SB No. 1630 in
substitution of SB No. 1129,
taking into consideration PS Res. No.
734 and HB No. 11197 11 - February 7, 1994
Certification by President Fidel V.
Ramos of Senate Bill No.
1630 for immediate enactment
to meet a public emergency - March 22, 1994
SB No. 1630 was approved by
the Senate on second and third
readings and subsequently
voted upon with 13 yeas, none
against and one abstention - March 24, 1994
Transmittal by the Senate to the
Lower House of a request
for a conference in view of
disagreeing provisions of
SB No. 1630 and HB NO.
11197 - March 24, 1994
The Bicameral Conference Committee
conducted various meetings to
reconcile the proposals on the
VAT - April 13, 19, 20, 21, 25
The House agreed on the Conference
Committee Report - April 27, 1994
The Senate agreed on the Conference
Committee Report - May 2, 1994
The President signed Republic Act
No. 7716 - The Expanded
VAT Law 12 - May 5, 1994
Republic Act No. 7716 was
published in two newspapers
of general circulation - May 12, 1994
Republic Act No. 7716 became
effective - May 28, 1994
Republic Act No. 7716 merely expanded the base of the VAT law even as the tax retained its multi-stage character.
At the oral hearing held on July 7, 1994, this Court delimited petitioners' arguments to the following issues culled
from their respective petitions.
PROCEDURAL ISSUES
Does Republic Act No. 7716 violate Article VI, Section 24, of the Constitution? 13
Does it violate Article VI, Section 26, paragraph 2, of the Constitution? 14
What is the extent of the power of the Bicameral Conference Committee?
SUBSTANTIVE ISSUES
Does the law violate the following provisions in Article III (Bill of Rights) of the Constitution:
1. Section 1 15
2. Section 4 16
3. Section 5 17
4. Section 10 18
Does the law violate the following other provisions of the Constitution?
1. Article VI, Section 28, paragraph 1 19
2. Article VI, Section 28, paragraph 3 20
As a result of the unedifying experience of the past where the Court had the propensity to steer clear of questions it
perceived to be "political" in nature, the present Constitution, in contrast, has explicitly expanded judicial power to
include the duty of the courts, especially the Supreme Court, "to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." 21 I submit that under this explicit mandate, the Court is empowered to rule upon acts of other
Government entities for the purpose of determining whether there may have been, in fact, irregularities committed
tantamount to violation of the Constitution, which case would clearly constitute a grave abuse of discretion on their
part.
In the words of the sponsor of the above-quoted Article of the Constitution on the Judiciary, the former Chief Justice
Roberto R. Concepcion, "the judiciary is the final arbiter on the question of whether or not a branch of government or
any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a
duty to pass judgment on matters of this nature.
This is the back ground of paragraph 2 of Section 1, which means that the courts cannot hereafter exhibit its wonted
reticence by claiming that such matters constitute a political question." 22
In the instant petitions, this Court is called upon, not so much to exercise its traditional power of judicial review as to
determine whether or not there has indeed been a grave abuse of discretion on the part of the Legislature amounting to
lack or excess of jurisdiction.
Where there are grounds to resolve a case without touching on its constitutionality, the Court will do so with utmost
alacrity in due deference to the doctrine of separation of powers anchored on the respect that must be accorded to the
other branches of government which are coordinate, coequal and, as far as practicable, independent of one another.
Once it is palpable that the constitutional issue is unavoidable, then it is time to assume jurisdiction, provided that the
following requisites for a judicial inquiry are met: that there must be an actual and appropriate case; a personal and
substantial interest of the party raising the constitutional question; the constitutional question must be raised at the
earliest possible opportunity and the decision of the constitutional question must be necessary to the determination of
the case itself, the same being the lis mota of the case. 23
Having assured ourselves that the above-cited requisites are present in the instant petitions, we proceed to take them
up.
ARTICLE VI, SECTION 24
Some petitioners assail the constitutionality of Republic Act No. 7716 as being in violation of Article VI, Section 24
of the Constitution which provides:
All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills, shall originate exclusively in the House of Representatives, but the
Senate may propose or concur with amendments.
In G.R. Nos. 115455 and 115781, petitioners argue:
(a) The bill which became Republic Act No. 7716 did not originate exclusively in the House of Representatives. The
Senate, after receiving H.B. No. 11197, submitted its own bill, S.B. No. 1630, and proceeded to vote and approve the
same after second and third readings.
(b) The Senate exceeded its authority to "propose or concur with amendments" when it submitted its own bill, S.B.
No. 1630, recommending its approval "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734
and H.B. No. 11197."
(c) H.B. No. 11197 was not deliberated upon by the Senate. Neither was it voted upon by the Senate on second and
third readings, as what was voted upon was S.B. No. 1630.
Article VI, Section 24 is taken word for word from Article VI, Section 18 of the 1935 Constitution which was, in turn,
patterned after Article I, Section 7 (1) of the Constitution of the United States, which states:
All bills for raising revenue shall originate in the House of Representatives, but the Senate may
propose or concur with amendments as on other bills.
The historical precedent for requiring revenue bills to originate in Congress is explained in the U.S. case ofMorgan v.
Murray. 24
The constitutional requirement that all bills for raising revenue shall originate in the House of
Representatives stemmed from a remedial outgrowth of the historic conflict between Parliament (i.e.,
Commons) and the Crown, whose ability to dominate the monarchially appointive and hereditary
Lords was patent. See 1 Story, Constitution, S 875 et seq., 5th Ed.; 1 Cooley, Constitutional
Limitations, pp. 267, 268, 8th Ed., 1 Sutherland, Statutory Construction, S 806, 3d Ed. There was a
measure of like justification for the insertion of the provision of article I, S 7, cl. 1, of the Federal
Constitution. At that time (1787) and thereafter until the adoption (in 1913) of the Seventeenth
Amendment providing for the direct election of senators, the members of the United States Senate
were elected for each state by the joint vote of both houses of the Legislature of the respective states,
and hence, were removed from the people ...
The legislative authority under the 1935 Constitution being unicameral, in the form of the National Assembly, it
served no purpose to include the subject provision in the draft submitted by the 1934 Constitutional Convention to the
Filipino people for ratification.
In 1940, however, the Constitution was amended to establish a bicameral Congress of the Philippines composed of a
House of Representatives and a Senate.
In the wake of the creation of a new legislative machinery, new provisions were enacted regarding the law-making
power of Congress. The National Assembly explained how the final formulation of the subject provision came about:
The concurrence of both houses would be necessary to the enactment of a law. However, all
appropriation, revenue or tariff bills, bills authorizing an increase of the public debt, bills of local
application, and private bills, should originate exclusively in the House of Representatives, although
the Senate could propose or concur with amendments.
In one of the first drafts of the amendments, it was proposed to give both houses equal powers in
lawmaking. There was, however, much opposition on the part of several members of the Assembly.
In another draft; the following provision, more restrictive than the present provision in the
amendment, was proposed and for sometime was seriously considered:
'All bills appropriating public funds, revenue or tariff bills, bills of local application, and private bills
shall originate exclusively in the Assembly, but the Senate may propose or concur with amendments.
In case of disapproval by the Senate of any such bills, the Assembly may repass the same by a two-
 thirds vote of all its members, and thereupon, the bill so repassed shall be deemed enacted and may
be submitted to the President for corresponding action. In the event that the Senate should fail to
finally act on any such bills, the Assembly may, after thirty days from the opening of the next regular
sessions of the same legislative term, reapprove the same with a vote of two-thirds of all the members
of the Assembly. And upon such reapproval, the bill shall be deemed enacted and may be submitted
to the president for corresponding action.'
However, the special committee voted finally to report the present amending provision as it is now
worded; and in that form it was approved by the National Assembly with the approval of Resolution
No. 38 and later of Resolution No. 73. 25 (Italics supplied)
Thus, the present Constitution is identically worded as its 1935 precursor: "All appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with amendments." (Italics supplied)
That all revenue bills, such as Republic Act No. 7716, should "originate exclusively in the House of Representatives"
logically flows from the more representative and broadly-based character of this Chamber.
It is said that the House of Representatives being the more popular branch of the legislature, being
closer to the people, and having more frequent contacts with them than the Senate, should have the
privilege of taking the initiative in the proposals of revenue and tax project, the disposal of the
people's money, and the contracting of public indebtedness.
These powers of initiative in the raising and spending of public funds enable the House of
Representatives not only to implement but even to determine the fiscal policies of the government.
They place on its shoulders much of the responsibility of solving the financial problems of the
government, which are so closely related to the economic life of the country, and of deciding on the
proper distribution of revenues for such uses as may best advance public interests. 26
The popular nature of the Lower House has been more pronounced with the inclusion of Presidentially-appointed
sectoral representatives, as provided in Article VI, Section 5 (2), of the Constitution, thus: "The party-list
representatives shall constitute twenty per centum of the total number of representatives including those under the
party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the
religious sector." (Italics supplied)
This novel provision which was implemented in the Batasang Pambansa during the martial law regime 27 was
eventually incorporated in the present Constitution in order to give those from the marginalized and often deprived
sector, an opportunity to have their voices heard in the halls of the Legislature, thus giving substance and meaning to
the concept of "people empowerment."
That the Congressmen indeed have access to, and consult their constituencies has been demonstrated often enough by
the fact that even after a House bill has been transmitted to the Senate for concurrence, some Congressmen have been
known to express their desire to change their earlier official position or reverse themselves after having heard their
constituents' adverse reactions to their representations.
In trying to determine whether the mandate of the Constitution with regard to the initiation of revenue bills has been
preserved inviolate, we have recourse to the tried and tested method of definition of terms. The term "originate" is
defined by Webster's New International Dictionary (3rd Edition, 1986) as follows: "v.i., to come into being; begin; to
start."
On the other hand, the word "exclusively" is defined by the same Webster's Dictionary as "in an exclusive manner; to
the exclusion of all others; only; as, it is his, exclusively." Black's Law Dictionary has this definition: "apart from all
others; only; solely; substantially all or for the greater part. to the exclusion of all other; without admission of others to
participation; in a manner to exclude. Standard Oil Co. of Texas v. State, Tex. Civ. App., 142 S.W. 2d 519, 521, 522,
523."
This Court had occasion to define the term "exclusive" as follows:
 ... In its usual and generally accepted sense, the term means possessed to the exclusion of others;
appertaining to the subject alone; not including, admitting or pertaining to another or others;
undivided, sole. 28
When this writer, during the oral argument of July 7, 1994, asked the petitioner in G.R. No. 115455 whether he
considers the word "exclusively" to be synonymous with "solely," he replied in the affirmative. 29
A careful examination of the legislative history traced earlier in this decision shows that the original VAT law,
Executive Order No. 273, was sought to be amended by ten House bills which finally culminated in House Bill No.
11197, as well as two Senate bills. It is to be noted that the first House Bill No. 253 was filed on July 22, 1992, and
two other House bills followed in quick succession on August 10 and September 9, 1992 before a Senate Resolution,
namely, Senate Res. No. 734, was filed on September 10, 1992 and much later, a Senate Bill proper,viz., Senate Bill
No. 1129 on March 1, 1993. Undoubtedly, therefore, these bills originated or had their start in the House and before
any Senate bill amending the VAT law was filed. In point of time and venue, the conclusion is ineluctable that
Republic Act No. 7716, which is indisputably a revenue measure, originated in the House of Representatives in the
form of House Bill No. 253, the first EVAT bill.
Additionally, the content and substance of the ten amendatory House Bills filed over the roughly one-year period from
July 1992 to August 1993 reenforce the position that these revenue bills, pertaining as they do, to Executive Order No.
273, the prevailing VAT law, originated in the Lower House.
House Bill Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9297, 10012 and 10100 were intended to restructure the
VAT system by exempting or imposing the tax on certain items or otherwise introducing reforms in the mechanics of
implementation. 30 Of these, House Bill No. 9210 was favored with a Presidential certification on the need for its
immediate enactment to meet a public emergency. Easily the most comprehensive, it noted that the revenue
performance of the VAT, being far from satisfactory since the collections have always fallen short of projections, "the
system is rendered inefficient, inequitable and less comprehensive." Hence, the Bill proposed several amendments
designed to widen the tax base of the VAT and enhance its administration. 31
That House Bill No. 11197 being a revenue bill, originated from the Lower House was acknowledged, in fact was
virtually taken for granted, by the Chairmen of the Committee on Ways and Means of both the House of
Representatives and the Senate. Consequently, at the April 19, 1994 meeting of the Bicameral Conference Committee,
the Members agreed to make the House Bill as the "frame of reference" or "base" of the discussions of the Bicameral
Conference Committee with the "amendments" or "insertions to emanate from the Senate." 32
As to whether the bills originated exclusively in the Lower House is altogether a different matter. Obviously, bills
amendatory of VAT did not originate solely in the House to the exclusion of all others for there were P.S. Res. No. 734
filed in the Senate on September 10, 1992 followed by Senate Bill No. 1129 which was filed on March 1, 1993. About
a year later, this was substituted by Senate Bill No. 1630 that eventually became the EVAT law, namely, Republic Act
No. 7716.
Adverting to the passage of the amendatory VAT bills in the Lower House, it is to be noted that House Bill No. 11197
which substituted all the prior bills introduced in said House complied with the required readings, that is, the first
reading consisting of the reading of the title and referral to the appropriate Committee, approval on second reading on
November 11, 1993 and on third reading on November 17, 1993 before being finally transmitted to the Senate. In the
Senate, its identity was preserved and its provisions were taken into consideration when the Senate Committee on
Ways and Means submitted Com. Report No. 349 which recommended for approval "S.B. No. 1630 in substitution of
S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197." At this stage, the subject bill may be
considered to have passed first reading in the Senate with the submission of said Committee Report No. 349 by the
Senate Committee on Ways and Means to which it had been referred earlier. What remained, therefore, was no longer
House Bill No. 11197 but Senate Bill No. 1630. Thence, the Senate, instead of transmitting the bill to the Lower
House for its concurrence and amendments, if any, took a "shortcut," bypassed the Lower House and instead,
approved Senate Bill No. 1630 on both second and third readings on the same day, March 24, 1994.
The first irregularity, that is, the failure to return Senate Bill No. 1630 to the Lower House for its approval is fatal
inasmuch as the other chamber of legislature was not afforded the opportunity to deliberate and make known its
views. It is no idle dictum that no less than the Constitution ordains: "The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives ..." 33 (Italics supplied)
It is to be pointed out too, that inasmuch as Senate Bill No. 1630 which had "taken into consideration" House Bill No.
11197 was not returned to the Lower House for deliberation, the latter Chamber had no opportunity at all to express its
views thereon or to introduce any amendment. The customary practice is, after the Senate has considered the Lower
House Bill, it returns the same to the House of origin with its amendments. In the event that there may be any
differences between the two, the same shall then be referred to a Conference Committee composed of members from
both Chambers which shall then proceed to reconcile said differences.
In the instant case, the Senate transmitted to the Lower House on March 24, 1994, a letter informing the latter that it
had "passed S. No. 1630 entitled . . . (and) in view of the disagreeing provisions of said bill and House Bill No. 11197,
entitled . . . the Senate requests a conference . . ." This, in spite of the fact that Com. Report No. 349 of the Senate
Committee on Ways and Means had already recommended for approval on February 7, 1994 "S.B. No. 1630 . . .
taking into consideration H.B. No. 11197." Clearly, the Conference Committee could only have acted upon Senate Bill
No. 1630, for House Bill No. 11197 had already been fused into the former.
At the oral hearing of July 7, 1994, petitioner in G.R. No. 115455 admitted, in response to this writer's query, that he
had attempted to rectify some of the perceived irregularities by presenting a motion in the Senate to recall the bill
from the Conference Committee so that it could revert to the period of amendment, but he was outvoted, in fact
"slaughtered." 34
In accordance with the Rules of the House of Representatives and the Senate, Republic Act No. 7716 was duly
authenticated after it was signed by the President of the Senate and the Speaker of the House of Representatives
followed by the certifications of the Secretary of the Senate and the Acting Secretary General of the House of
Representatives. 35 With the signature of President Fidel V. Ramos under the words "Approved: 5 May 1994," it was
finally promulgated.
Its legislative journey ended, Republic Act No. 7716 attained the status of an enrolled bill which is defined as one
"which has been duly introduced, finally passed by both houses, signed by the proper officers of each, approved by
the governor (or president) and filed by the secretary of state." 36
Stated differently:
It is a declaration by the two houses, through their presiding officers, to the president, that a bill, thus
attested, has received in due form, the sanction of the legislative branch of the government, and that it
is delivered to him in obedience to the constitutional requirement that all bills which pass Congress
shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the
public archives, its authentication as a bill that has passed Congress should be deemed complete and
unimpeachable. As the President has no authority to approve a bill not passed by Congress, an
enrolled Act in the custody of the Secretary of State, and having the official attestations of the
Speaker of the House of Representatives, of the President of the Senate, and of the President of the
United States, carries, on its face, a solemn assurance by the legislative and executive departments of
the government, charged, respectively, with the duty of enacting and executing the laws, that it was
passed by Congress. The respect due to coequal and independent departments requires the judicial
department to act upon that assurance, and to accept, as having passed Congress, all bills
authenticated in the manner stated; leaving the courts to determine, when the question properly
arises, whether the Act, so authenticated, is in conformity with the Constitution. 37
The enrolled bill assumes importance when there is some variance between what actually transpired in the halls of
Congress, as reflected in its journals, and as shown in the text of the law as finally enacted. But suppose the journals
of either or both Houses fail to disclose that the law was passed in accordance with what was certified to by their
respective presiding officers and the President. Or that certain constitutional requirements regarding its passage were
not observed, as in the instant case. Which shall prevail: the journal or the enrolled bill?
A word on the journal.
The journal is the official record of the acts of a legislative body. It should be a true record of the
proceedings arranged in chronological order. It should be a record of what is done rather than what is
said. The journal should be a clear, concise, unembellished statement of all proposals made and all
actions taken complying with all requirements of constitutions, statutes, charters or rules concerning
what is to be recorded and how it is to be recorded. 38
Article VI, Section 16 (4) of the Constitution ordains:
 Each house shall keep a Journal of its proceedings, and from time to time publish the same,
excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any
question shall, at the request of one-fifth of the Members present, be entered in the Journal.
Each House shall also keep a Record of its proceedings." (Italics supplied)
The rationale behind the above provision and of the "journal entry rule" is as follows:
It is apparent that the object of this provision is to make the legislature show what it has done,
leaving nothing whatever to implication. And, when the legislature says what it has done, with regard
to the passage of any bill, it negatives the idea that it has done anything else in regard thereto. Silence
proves nothing where one is commanded to speak . . . . Our constitution commands certain things to
be done in regard to the passage of a bill, and says that no bill shall become a law unless these things
are done. It seems a travesty upon our supreme law to say that it guaranties to the people the right to
have their laws made in this manner only, and that there is no way of enforcing this right, or for the
court to say that this is law when the constitution says it is not law. There is one safe course which is
in harmony with the constitution, and that is to adhere to the rule that the legislature must show, as
commanded by the constitution, that it has done everything required by the constitution to be done in
the serious and important matter of making laws. This is the rule of evidence provided by the
constitution. It is not presumptuous in the courts, nor disrespectful to the legislature, to judge the acts
of the legislature by its own evidence. 39
Confronted with a discrepancy between the journal proceedings and the law as duly enacted, courts have indulged in
different theories. The "enrolled bill" and "journal entry" rules, being rooted deep in the Parliamentary practices of
England where there is no written constitution, and then transplanted to the United States, it may be instructive to
examine which rule prevails in the latter country through which, by a process of legislative osmosis, we adopted them
in turn.
There seems to be three distinct and different rules as applicable to the enrolled bill recognized by the
various courts of this country. The first of these rules appears to be that the enrolled bill is the
ultimate proof and exclusive and conclusive evidence that the bill passed the legislature in
accordance with the provisions of the Constitution. Such has been the holding in California, Georgia,
Kentucky, Texas, Washington, New Mexico, Mississippi, Indiana, South Dakota, and may be some
others.
The second of the rules seems to be that the enrolled bill is a verity and resort cannot be had to the
journals of the Legislature to show that the constitutional mandates were not complied with by the
Legislature, except as to those provisions of the Constitution, compliance with which is expressly
required to be shown on the journal. This rule has been adopted in South Carolina, Montana,
Oklahoma, Utah, Ohio, New Jersey, United States Supreme Court, and others.
The third of the rules seems to be that the enrolled bill raises only a prima facie presumption that the
mandatory provisions of the Constitution have been complied with and that resort may be had to the
journals to refute that presumption, and if the constitutional provision is one, compliance with which
is expressly required by the Constitution to be shown on the journals, then the mere silence of the
journals to show a compliance therewith will refute the presumption. This rule has been adopted in
Illinois, Florida, Kansas, Louisiana, Tennessee, Arkansas, Idaho, Minnesota, Nebraska, Arizona,
Oregon, New Jersey, Colorado, and others. 40
In the 1980 case of D & W Auto Supply v. Department of Revenue, the Supreme Court of Kentucky which had
subscribed in the past to the first of the three theories, made the pronouncement that it had shifted its stand and would
henceforth adopt the third. It justified its changed stance, thus:
We believe that a more reasonable rule is the one which Professor Sutherland describes as the
'extrinsic evidence' rule . . . . Under this approach there is a prima facie presumption that an enrolled
bill is valid, but such presumption may be overcome by clear satisfactory and convincing evidence
establishing that constitutional requirements have not been met. 41
What rule, if any, has been adopted in this jurisdiction?
Advocates of the "journal entry rule" cite the 1916 decision in U.S. v. Pons 42 where this Court placed reliance on the
legislative journals to determine whether Act No. 2381 was passed on February 28, 1914 which is what appears in the
Journal, or on March 1, 1914 which was closer to the truth. The confusion was caused by the adjournment sine die at
midnight of February 28, 1914 of the Philippine Commission.
A close examination of the decision reveals that the Court did not apply the "journal entry rule" vis-a-vis the "enrolled
bill rule" but the former as against what are "behind the legislative journals."
Passing over the question of whether the printed Act (No. 2381), published by authority of law, is
conclusive evidence as to the date when it was passed, we will inquire whether the courts may go
behind the legislative journals for the purpose of determining the date of adjournment when such
journals are clear and explicit. 43
It is to be noted from the above that the Court "passed over" the probative value to be accorded to the enrolled bill.
Opting for the journals, the Court proceeded to explain:
From their very nature and object, the records of the Legislature are as important as those of the
judiciary, and to inquire into the veracity of the journals of the Philippine Legislature, when they are,
as we have said clear and explicit, would be to violate both the letter and the spirit of the organic laws
by which the Philippine Government was brought into existence, to invade a coordinate and
independent department of the Government, and to interfere with the legitimate powers and functions
of the Legislature. 44
Following the courts in the United States since the Constitution of the Philippine Government is modeled after that of
the Federal Government, the Court did not hesitate to follow the courts in said country, i.e., to consider the journals
decisive of the point at issue. Thus: "The journals say that the Legislature adjourned at 12 midnight on February 28,
1914. This settles the question and the court did not err in declining to go behind these journals." 45
The Court made a categorical stand for the "enrolled bill rule" for the first time in the 1947 case of Mabanag v. Lopez
Vito 46 where it held that an enrolled bill imports absolute verity and is binding on the courts. This Court held itself
bound by an authenticated resolution, despite the fact that the vote of three-fourths of the Members of the Congress
(as required by the Constitution to approve proposals for constitutional amendments) was not actually obtained on
account of the suspension of some members of the House of Representatives and the Senate. In this connection, the
Court invoked the "enrolled bill rule" in this wise: "If a political question conclusively binds the judges out of respect
to the political departments, a duly certified law or resolution also binds the judges under the 'enrolled bill rule' born
of that respect." 47
Mindful that the U.S. Supreme Court is on the side of those who favor the rule and for no other reason than that it
conforms to the expressed policy of our law making body (i.e., Sec. 313 of the old Code of Civil Procedure, as
amended by Act No. 2210), the Court said that "duly certified copies shall be conclusive proof of the provisions of
such Acts and of the due enactment thereof." Without pulling the legal underpinnings from U.S. v. Pons, it justified its
position by saying that if the Court at the time looked into the journals, "in all probability, those were the documents
offered in evidence" and that "even if both the journals and authenticated copy of the Act had been presented, the
disposal of the issue by the Court on the basis of the journals does not imply rejection of the enrolled theory; for as
already stated, the due enactment of a law may be proved in either of the two ways specified in Section 313 of Act No.
190 as amended." 48 Three Justices voiced their dissent from the majority decision.
Again, the Court made its position plain in the 1963 case of Casco Philippine Chemical Co., Inc. v. Gimenez 49when a
unanimous Court ruled that: "The enrolled bill is conclusive upon the courts as regards the tenor of the measure
passed by Congress and approved by the President. If there has been any mistake in the printing of a bill before it was
certified by the officers of Congress and approved by the Executive, the remedy is by amendment or curative
legislation not by judicial decree." According to Webster's New 20th Century Dictionary, 2nd ed., 1983, the word
"tenor" means, among others, "the general drift of something spoken or written; intent, purport, substance."
Thus, the Court upheld the respondent Auditor General's interpretation that Republic Act No. 2609 really exempted
from the margin fee on foreign exchange transactions "urea formaldehyde" as found in the law and not "urea and
formaldehyde" which petitioner insisted were the words contained in the bill and were so intended by Congress.
In 1969, the Court similarly placed the weight of its authority behind the conclusiveness of the enrolled bill. In
denying the motion for reconsideration, the Court ruled in Morales v. Subido that "the enrolled Act in the office of the
legislative secretary of the President of the Philippines shows that Section 10 is exactly as it is in the statute as
officially published in slip form by the Bureau of Printing ... Expressed elsewise, this is a matter worthy of the
attention not of an Oliver Wendell Holmes but of a Sherlock Holmes." 50 The alleged omission of a phrase in the final
Act was made, not at any stage of the legislative proceedings, but only in the course of the engrossment of the bill,
more specifically in the proofreading thereof.
But the Court did include a caveat that qualified the absoluteness of the "enrolled bill" rule stating:
By what we have essayed above we are not of course to be understood as holding that in all cases the
journals must yield to the enrolled bill. To be sure there are certain matters which the Constitution
(Art. VI, secs. 10 [4], 20 [1], and 21 [1)]) expressly requires must be entered on the journal of each
house. To what extent the validity of a legislative act may be affected by a failure to have such
matters entered on the journal, is a question which we do not now decide (Cf. e.g., Wilkes Country
Comm'rs. v. Coler, 180 U.S. 506 [1900]). All we hold is that with respect to matters not expressly
required to be entered on the journal, the enrolled bill prevails in the event of any discrepancy. 51
More recently, in the 1993 case of Philippine Judges Association v. Prado, 52 this Court, in ruling on the
unconstitutionality of Section 35 of Republic Act No. 7354 withdrawing the franking privilege from the entire
hierarchy of courts, did not so much adhere to the enrolled bill rule alone as to both "enrolled bill and legislative
journals." Through Mr. Justice Isagani A. Cruz, we stated: "Both the enrolled bill and the legislative journals certify
that the measure was duly enacted, i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution. We are bound
by such official assurances from a coordinate department of the government, to which we owe, at the very least, a
becoming courtesy."
Aware of the shifting sands on which the validity and continuing relevance of the "enrolled bill" theory rests, I have
taken pains to trace the history of its applicability in this jurisdiction, as influenced in varying degrees by different
Federal rulings.
As applied to the instant petition, the issue posed is whether or not the procedural irregularities that attended the
passage of House Bill No. 11197 and Senate Bill No. 1630, outside of the reading and printing requirements which
were exempted by the Presidential certification, may no longer be impugned, having been "saved" by the
conclusiveness on us of the enrolled bill. I see no cogent reason why we cannot continue to place reliance on the
enrolled bill, but only with respect to matters pertaining to the procedure followed in the enactment of bills in
Congress and their subsequent engrossment, printing errors, omission of words and phrases and similar relatively
minor matters relating more to form and factual issues which do not materially alter the essence and substance of the
law itself.
Certainly, "courts cannot claim greater ability to judge procedural legitimacy, since constitutional rules on legislative
procedure are easily mastered. Procedural disputes are over facts - whether or not the bill had enough votes, or three
readings, or whatever - not over the meaning of the constitution. Legislators, as eyewitnesses, are in a better position
than a court to rule on the facts. The argument is also made that legislatures would be offended if courts examined
legislative procedure. 53
Such a rationale, however, cannot conceivably apply to substantive changes in a bill introduced towards the end of its
tortuous trip through Congress, catching both legislators and the public unawares and altering the same beyond
recognition even by its sponsors.
This issue I wish to address forthwith.
EXTENT OF THE POWER OF THE BICAMERAL CONFERENCE COMMITTEE
One of the issues raised in these petitions, especially in G.R. Nos. 115781, 115543 and 115754, respectively, is
whether or not --
Congress violated Section 26, par. 2, Article VI (of the 1987 Constitution) when it approved the
Bicameral Conference Committee Report which embodied, in violation of Rule XII of the Rules of
the Senate, a radically altered tax measure containing provisions not reported out or discussed in
either House as well as provisions on which there was no disagreement between the House and the
Senate and, worse, provisions contrary to what the House and the Senate had approved after three
separate readings. 54
and
 By adding or deleting provisions, when there was no conflicting provisions between the House and
Senate versions, the BICAM acted in excess of its jurisdiction or with such grave abuse of discretion
as to amount to loss of jurisdiction. ... In adding to the bill and thus subjecting to VAT, real properties,
media and cooperatives despite the contrary decision of both Houses, the BICAM exceeded its
jurisdiction or acted with such abuse of discretion as to amount to loss of jurisdiction. . . . 55
I wish to consider this issue in light of Article VIII, Sec. 1 of the Constitution which provides that "(j)udicial power
includes the duty of the courts of justice ... to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." We are
also guided by the principle that a court may interfere with the internal procedures of its coordinate branch only to
uphold the Constitution. 56
A conference committee has been defined:
... unlike the joint committee is two committees, one appointed by each house. It is normally
appointed for a specific bill and its function is to gain accord between the two houses either by the
recession of one house from its bill or its amendments or by the further amendment of the existing
legislation or by the substitution of an entirely new bill. Obviously the conference committee is
always a special committee and normally includes the member who introduced the bill and the
chairman of the committee which considered it together with such other representatives of the house
as seem expedient. (Horack, Cases and Materials on Legislation [1940] 220. See also Zinn,
Conference Procedure in Congress, 38 ABAJ 864 [1952]; Steiner, The Congressional Conference
Committee [U of III. Press, 1951]). 57
From the foregoing definition, it is clear that a bicameral conference committee is a creature, not of the Constitution,
but of the legislative body under its power to determine rules of its proceedings under Article VI, Sec. 16 (3) of the
Constitution. Thus, it draws its life and vitality from the rules governing its creation. The why, when, how and
wherefore of its operations, in other words, the parameters within which it is to function, are to be found in Section
26, Rule XII of the Rules of the Senate and Section 85 of the Rules of the House of Representatives, respectively,
which provide:
Rule XII, Rules of the Senate
SEC. 26. In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference committee of
both Houses which shall meet within ten days after their composition.
The President shall designate the members of the conference committee in accordance with
subparagraph (c), Section 8 of Rule III.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in or amendments to the subject measure, and shall be signed by the conferees.
The consideration of such report shall not be in order unless the report has been filed with the
Secretary of the Senate and copies thereof have been distributed to the Members."
Rules of the House of Representatives
SEC. 85. Conference Committee Reports. - In the event that the House does not agree with the Senate
on the amendments to any bill or joint resolution, the differences may be settled by conference
committee of both Chambers.
The consideration of conference committee reports shall always be in order, except when the journal
is being read, while the roll is being called or the House is dividing on any question. Each of the
pages of such reports shall contain a detailed, sufficiently explicit statement of the changes in or
amendments to the subject measure.
The consideration of such report shall not be in order unless copies thereof are distributed to the
Members: Provided, That in the last fifteen days of each session period it shall be deemed sufficient
that three copies of the report, signed as above provided, are deposited in the office of the Secretary
General.
Under these Rules, a bicameral conference committee comes into being only when there are disagreements and
differences between the Senate and the House with regard to certain provisions of a particular legislative act which
have to be reconciled.
Jefferson's Manual, which, according to Section 112, Rule XLIX of the Senate Rules, supplements it, states that a
conference committee is usually called "on the occasion of amendments between the Houses" and "in all cases of
difference of opinion between the two House on matters pending between them." 58 It further states:
The managers of a conference must confine themselves to the differences committed to them, and may not include
subjects not within the disagreements, even though germane to a question in issue. But they may perfect amendments
committed to them if they do not in so doing go beyond the differences. ... Managers may not change the text to which
both Houses have agreed. 59 (Italics supplied.)
Mason's Manual of Legislative Procedures which is also considered as controlling authority for any situation not
covered by a specific legislative rule, 60 states that either House may "request a conference with the other on any
matter of difference or dispute between them" and that in such a request, "the subject of the conference should always
be stated." 61
In the Philippines, as in the United States, the Conference Committee exercises such a wide range of authority that
they virtually constitute a third House in the Legislature. As admitted by the Solicitor General, "It was the practice in
past Congresses for Conference Committees to insert in bills approved by the two Houses new provisions that were
not originally contemplated by them." 62
In Legislative Procedure, Robert Luce gives a graphic description of the milieu and the circumstances which have
conspired to transform an initially innocuous mechanism designed to facilitate action into an all-powerful
Frankenstein that brooks no challenge to its authority even from its own members.
Their power lies chiefly in the fact that reports of conference committees must be accepted without
amendment or else rejected in toto. The impulse is to get done with the matters and so the motion to
accept has undue advantage, for some members are sure to prefer swallowing unpalatable provisions
rather than prolong controversy. This is the more likely if the report comes in the rush of business
toward the end of a session, when to seek further conference might result in the loss of the measure
altogether. At any time in the session there is some risk of such a result following the rejection of a
conference report, for it may not be possible to secure a second conference, or delay may give
opposition to the main proposal chance to develop more strength.
xxx xxx xxx
Entangled in a network of rule and custom, the Representative who resents and would resist this theft
of his rights, finds himself helpless. Rarely can he vote, rarely can he voice his mind, in the matter of
any fraction of the bill. Usually he cannot even record himself as protesting against some one feature
while accepting the measure as whole. Worst of all, he cannot by argument or suggested change, try
to improve what the other branch has done.
This means more than the subversion of individual rights. It means to a degree the abandonment of
whatever advantage the bicameral system may have. By so much it in effect transfers the lawmaking
power to a small group of members who work out in private a decision that almost always prevails.
What is worse, these men are not chosen in a way to ensure the wisest choice. It has become the
practice to name as conferees the ranking members of the committee, so that the accident of seniority
determines. Exceptions are made, but in general it is not a question of who are most competent to
serve. Chance governs, sometimes giving way to favor, rarely to merit.
xxx xxx xxx
Speaking broadly, the system of legislating by conference committee is unscientific and therefore
defective. Usually it forfeits the benefit of scrutiny and judgment by all the wisdom available.
Uncontrolled, it is inferior to that process by which every amendment is secured independent
discussion and vote. ... 63 (Italics supplied)
Not surprisingly has it been said: "Conference Committee action is the most undemocratic procedure in the legislative
process; it is an appropriate target for legislative critics." 64
In the case at bench, petitioners insist that the Conference Committee to which Senate Bill No. 1630 and House Bill
No. 11197 were referred for the purpose of harmonizing their differences, overreached themselves in not confining
their "reconciliation" function to those areas of disagreement in the two bills but actually making "surreptitious
insertions" and deletions which amounted to a grave abuse of discretion.
At this point, it becomes imperative to focus on the errant provisions which found their way into Republic Act No.
7716. Below is a breakdown to facilitate understanding the grounds for petitioners' objections:
INSERTIONS MADE BY BICAMERAL CONFERENCE COMMITTEE (BICAM) TO SENATE BILL (SB)
NO. 1630 AND HOUSE BILL (HB) NO. 11197
1. Sec. 99 of the National Internal Revenue Code (NIRC)
(1) Under the HB, this section includes any person who, in the course of trade or business, sells, barters or exchanges
goods OR PROPERTIES and any person who LEASES PERSONAL PROPERTIES.
(2) The SB completely changed the said section and defined a number of words and phrases. Also, Section 99-A was
added which included one who sells, exchanges, barters PROPERTIES and one who imports PROPERTIES.
(3) The BICAM version makes LESSORS of goods OR PROPERTIES and importers of goods LIABLE to VAT
(subject of petition in G.R. No. 115754).
2. Section 100 (VAT on Sale of Goods)
The term "goods" or "properties" includes the following, which were not found in either the HB or the SB:
- In addition to radio and television time; SATTELITE TRANSMISSION AND CABLE
TELEVISION TIME.
- The term "Other similar properties" was deleted, which was present in the HB and the SB.
- Real properties held primarily for sale to customers or held for lease in the ordinary course or
business were included, which was neither in the HB nor the SB (subject of petition in G.R. No.
115754).
3. Section 102
On what are included in the term "sale or exchange of services," as to make them subject to VAT, the BICAM
included/inserted the following (not found in either House or Senate Bills):
1. Services of lessors of property, whether personal or real (subject of petition in G.R. No. 115754);
2. Warehousing services;
3. Keepers of resthouses, pension houses, inns, resorts;
4. Common carriers by land, air and sea;
5. Services of franchise grantees of telephone and telegraph;
6. Radio and television broadcasting;
7. All other franchise grantees except those under Section 117 of this Code (subject of petition in G.R.
No. 115852);
8. Services of surety, fidelity, indemnity, and bonding companies;
9. Also inserted by the BICAM (on page 8 thereof) is the lease or use of or the right to use of satellite
transmission and cable television time.
4. Section 103 (Exempt Transactions)
The BICAM deleted subsection (f) in its entirety, despite its inclusion in both the House and Senate Bills. Therefore,
under Republic Act No. 7716, the "printing, publication, importation or sale of books and any newspaper, magazine,
review, or bulletin which appears at regular intervals with fixed prices for subscription and sale and which is not
devoted principally to the publication of advertisements" is subject to VAT (subject of petition in G.R. No. 115931 and
G.R. No. 115544).
The HB and SB did not touch Subsection (g) but it was amended by the BICAM by changing the word TEN to FIVE.
Thus, importation of vessels with tonnage of more than five thousand tons is VAT exempt.
Subsection L, which was identical in the HB and the SB that stated that medical, dental, hospital and veterinary
services were exempted from the VAT was amended by the BICAM by adding the qualifying phrase: EXCEPT
THOSE RENDERED BY PROFESSIONALS, thus subjecting doctors, dentists and veterinarians to the VAT.
Subsection U which exempts from VAT "transactions which are exempt under special laws," was amended by the
BICAM by adding the phrase: EXCEPT THOSE GRANTED UNDER PD Nos. 66, 529, 972, 1491, AND 1590, AND
NON-ELECTRIC COOPERATIVES UNDER RA 6938 (subject of petition in G.R. No. 115873), not found in either
the HB or the SB, resulting in the inclusion of all cooperatives to the VAT, except non-electric cooperatives.
The sale of real properties was included in the exempt transactions under the House Bill, but the BICAM qualified
this with the provision:
(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO CUSTOMERS OR
HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE OR BUSINESS OR REAL
PROPERTY UTILIZED FOR LOW-COST AND SOCIALIZED HOUSING AS DEFINED BY RA
NO. 7279 OTHERWISE KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OF
1992 AND OTHER RELATED LAWS. (subject of petition in G.R. No. 115754)
The BICAM also exempted the sale of properties, the receipts of which are not less than P480,000.00 or more than
P720,000.00. Under the SB, no amount was given, but in the HB it was stated that receipts from the sale of properties
not less than P350,000.00 nor more than P600,000.00 were exempt.
It did not include, as VAT exempt, the sale or transfer of securities, as defined in the Revised Securities Act (BP 178)
which was contained in both Senate and House Bills.
5. Section 104
Not included in the HB or the SB is the phrase "INCLUDING PACKAGING MATERIALS" which was inserted by
the BICAM in Section 104 (A) (1) (B), thus excluding from creditable input tax packaging materials and the phrase
"ON WHICH A VALUE-ADDED TAX HAS BEEN ACTUALLY PAID" in Section 104 (A) (2).
6. Section 107
Both House and Senate Bills provide for the payment of P500.00 VAT registration fee but this was increased by
BICAM to P1,000.00.
7. Section 112
Regarding a person whose sales or receipts are exempt under Section 103 (w), the BICAM inserted the phrase:
"THREE PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO YEARS
THEREAFTER," although the SB and the HB provide only "three percent of his gross quarterly sales."
8. Section 115
The BICAM adopted the HB version which subjects common carriers by land, air or water for the transport of
passengers to 3% of their gross quarterly sales, which is not found in the SB.
9. Section 117
The BICAM amended this section by subjecting franchises on electric, gas and water utilities to a tax of two percent
(2%) on gross receipts derived ..., although neither the HB nor the SB has a similar provision.
10. Section 17 (d)
(a) The BICAM defers for only 2 years the VAT on services of actors and actresses, although the SB defers it for 3
years.
(b) The BICAM uses the word "EXCLUDE" in the section on deferment of VAT collection on certain goods and
services. The HB does not contain any counterpart provision and SB only allows deferment for no longer than 3 years.
11. Section 18 on the Tax Administration Development Fund is an entirely new provision not contained in the
House/Senate Bills. This fund is supposed to ensure effective implementation of Republic Act No. 7716.
12. Section 19
No period within which to promulgate the implementing rules and regulations is found in the HB or the SB but
BICAM provided "within 90 days" which found its way in Republic Act No. 7716.
Even a cursory perusal of the above outline will convince one that, indeed, the Bicameral Conference Committee
(henceforth to be referred to as BICAM) exceeded the power and authority granted in the Rules of its creation. Both
Senate and House Rules limit the task of the Conference Committee in almost identical language to the settlement of
differences in the provisions or amendments to any bill or joint resolution. If it means anything at all, it is that there
are provisions in subject bill, to start with, which differ and, therefore, need reconciliation. Nowhere in the Rules is it
authorized to initiate or propose completely new matter. Although under certain rules on legislative procedure, like
those in Jefferson's Manual, a conference committee may introduce germane matters in a particular bill, such matters
should be circumscribed by the committee's sole authority and function to reconcile differences.
Parenthetically, in the Senate and in the House, a matter is "germane" to a particular bill if there is a common tie
between said matter and the provisions which tend to promote the object and purpose of the bill it seeks to amend. If it
introduces a new subject matter not within the purview of the bill, then it is not "germane" to the bill. 65 The test is
whether or not the change represented an amendment or extension of the basic purpose of the original, or the
introduction of an entirely new and different subject matter. 66
In the BICAM, however, the germane subject matter must be within the ambit of the disagreement between the two
Houses. If the "germane" subject is not covered by the disagreement but it is reflected in the final version of the bill as
reported by the Conference Committee or, if what appears to be a "germane" matter in the sense that it is "relevant or
closely allied" 67 with the purpose of the bill, was not the subject of a disagreement between the Senate and the House,
it should be deemed an extraneous matter or even a "rider" which should never be considered legally passed for not
having undergone the three-day reading requirement. Insertion of new matter on the part of the BICAM is, therefore,
an ultra vires act which makes the same void.
The determination of what is "germane" and what is not may appear to be a difficult task but the Congress, having
been confronted with the problem before, resolved it in accordance with the rules. In that case, the Congress approved
a Conference Committee's insertion of new provisions that were not contemplated in any of the provisions in question
between the Houses simply because of the provision in Jefferson's Manual that conferees may report matters "which
are germane modifications of subjects in disagreement between the Houses and the committee. 68 In other words, the
matter was germane to the points of disagreement between the House and the Senate.
As regards inserted amendments in the BICAM, therefore, the task of determining what is germane to a bill is
simplified, thus: If the amendments are not circumscribed by the subjects of disagreement between the two Houses,
then they are not germane to the purpose of the bill.
In the instant case before us, the insertions and deletions made do not merely spell an effort at settling conflicting
provisions but have materially altered the bill, thus giving rise to the instant petitions on the part of those who were
caught unawares by the legislative legerdemain that took place. Going by the definition of the word "amendment" in
Black's Law Dictionary, 5th Ed., 1979, which means "to change or modify for the better; to alter by modification,
deletion, or addition," said insertions and deletions constitute amendments. Consequently, these violated Article VI,
Section 26 (2) which provides inter alia: "Upon the last reading of a bill, no amendment thereto shall be allowed . . ."
This proscription is intended to subject all bills and their amendments to intensive deliberation by the legislators and
the ample ventilation of issues to afford the public an opportunity to express their opinions or objections thereon. The
same rationale underlies the three-reading requirement to the end that no surprises may be sprung on an unsuspecting
citizenry.
Provisions of the "now you see it, now you don't" variety, meaning those which were either in the House and/or
Senate versions but simply disappeared or were "bracketed out" of existence in the BICAM Report, were eventually
incorporated in Republic Act No. 7716. Worse, some goods, properties or services which were not covered by the two
versions and, therefore, were never intended to be so covered, suddenly found their way into the same Report. No
advance notice of such insertions prepared the rest of the legislators, much less the public who could be adversely
affected, so that they could be given the opportunity to express their views thereon. Well has the final BICAM report
been described, therefore, as an instance of "taxation without representation."
That the conferees or delegates in the BICAM representing the two Chambers could not possibly be charged with bad
faith or sinister motives or, at the very least, unseemly behavior, is of no moment. The stark fact is that items not
previously subjected to the VAT now fell under its coverage without interested sectors or parties having been afforded
the opportunity to be heard thereon. This is not to say that the Conference Committee Report should have undergone
the three readings required in Article VI, Section 26 (2), for this clearly refers only to bills which, after having been
initially filed in either House, negotiated the labyrinthine passage therein until its approval. The composition of the
BICAM including as it usually does, the Chairman of the appropriate Committee, the sponsor of the bill and other
interested members ensures an informed discussion, at least with respect to the disagreeing provisions. The same does
not obtain as regards completely new matter which suddenly spring on the legislative horizon.
It has been pointed out that such extraneous matters notwithstanding, all Congressman and Senators were given the
opportunity to approve or turn down the Committee Report in toto, thus "curing" whatever defect or irregularity it
bore.
Earlier in this opinion, I explained that the source of the acknowledged power of this ad hoc committee stems from
the precise fact that, the meetings, being scheduled "take it or leave it" basis. It has not been uncommon for legislators
who, for one reason or another have been frustrated in their attempt to pass a pet bill in their own chamber, to work for
its passage in the BICAM where it may enjoy a more hospitable reception and faster approval. In the instant case, had
there been full, open and unfettered discussion on the bills during the Committee sessions, there would not have been
as much vociferous objections on this score. Unfortunately, however, the Committee held two of the five sessions
behind closed doors, sans stenographers, record-takers and interested observers. To that extent, the proceedings were
shrouded in mystery and the public's right to information on matters of public concern as enshrined in Article III,
Section 7 69 and the government's policy of transparency in transactions involving public interest in Article II, Section
28 of the Constitution 70 are undermined.
Moreover, that which is void ab initio such as the objectionable provisions in the Conference Committee Report,
cannot be "cured" or ratified. For all intents and purposes, these never existed. Quae ab initio non valent, ex post facto
convalescere non possunt. Things that are invalid from the beginning are not made valid by a subsequent act.
Should this argument be unacceptable, the "enrolled bill" doctrine, in turn, is invoked to support the proposition that
the certification by the presiding officers of Congress, together with the signature of the President, bars further judicial
inquiry into the validity of the law. I reiterate my submission that the "enrolled bill ruling" may be applicable but only
with respect to questions pertaining to the procedural enactment, engrossment, printing, the insertion or deletion of a
word or phrase here and there, but would draw a dividing line with respect to substantial substantive changes, such as
those introduced by the BICAM herein.
We have before us then the spectacle of a body created by the two Houses of Congress for the very limited purpose of
settling disagreements in provisions between bills emanating therefrom, exercising the plenary legislative powers of
the parent chambers but holding itself exempt from the mandatory constitutional requirements that are the hallmarks
of legislation under the aegis of a democratic political system. From the initial filing, through the three readings which
entail detailed debates and discussions in Committee and plenary sessions, and on to the transmittal to the other House
in a repetition of the entire process to ensure exhaustive deliberations - all these have been skipped over. In the
proverbial twinkling of an eye, provisions that probably may not have seen the light of day had they but run their full
course through the legislative mill, sprang into existence and emerged full-blown laws.
Yet our Constitution vests the legislative power in "the Congress of the Philippines which shall consist of a Senate and
a House of Representatives ..." 71 and not in any special, standing or super committee of its own creation, no matter
that these have been described, accurately enough, as "the eye, the ear, the hand, and very often the brain of the
house."
Firstly, that usage or custom has sanctioned this abbreviated, if questionable, procedure does not warrant its being
legitimized and perpetuated any longer. Consuetudo, contra rationem introducta, potius usurpatio quam consuetudo
appellari debet. A custom against reason is rather an usurpation. In the hierarchy of sources of legislative procedure,
constitutional rules, statutory provisions and adopted rules (as for example, the Senate and House Rules), rank
highest, certainly much ahead of customs and usages.
Secondly, is this Court to assume the role of passive spectator or indulgent third party, timorous about exercising its
power or more importantly, performing its duty, of making a judicial determination on the issue of whether there has
been grave abuse of discretion by the other branches or instrumentalities of government, where the same is properly
invoked? The time is past when the Court was not loathe to raise the bogeyman of the political question to avert a
head-on collision with either the Executive or Legislative Departments. Even the separation of powers doctrine was
burnished to a bright sheen as often as it was invoked to keep the judiciary within bounds. No longer does this
condition obtain. Article VIII, Section 2 of the Constitution partly quoted in this paragraph has broadened the scope of
judicial inquiry. This Court can now safely fulfill its mandate of delimiting the powers of co-equal departments like
the Congress, its officers or its committees which may have no compunctions about exercising legislative powers in
full.
Thirdly, dare we close our eyes to the presumptuous assumption by a runaway committee of its progenitor's legislative
powers in derogation of the rights of the people, in the process, subverting the democratic principles we all are sworn
to uphold, when a proper case is made out for our intervention? The answers to the above queries are self-evident.
I call to mind this exhortation: "We are sworn to see that violations of the constitution - by any person, corporation,
state agency or branch of government - are brought to light and corrected. To countenance an artificial rule of law that
silences our voices when confronted with violations of our Constitution is not acceptable to this Court." 72
I am not unaware that a rather recent decision of ours brushed aside an argument that a provision in subject law
regarding the withdrawal of the franking privilege from the petitioners and this Court itself, not having been included
in the original version of Senate Bill No. 720 or of House Bill No. 4200 but only in the Conference Committee
Report, was violative of Article VI, Section 26 (2) of the Constitution. Likewise, that said Section 35, never having
been a subject of disagreement between both Houses, could not have been validly added as an amendment before the
Conference Committee.
The majority opinion in said case explained:
While it is true that a conference committee is the mechanism for compromising differences between
the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is
described thus:
'A conference committee may deal generally with the subject matter or it may be limited to resolving
the precise differences between the two houses. Even where the conference committee is not by rule
limited in its jurisdiction, legislative custom severely limits the freedom with which new subject
matter can be inserted into the conference bill. But occasionally a conference committee produces
unexpected results, results beyond its mandate. These excursions occur even where the rules impose
strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian
power of conference committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p.
81).' 73(Italics supplied)
At the risk of being repetitious, I wish to point out that the general rule, as quoted above, is: "Even where the
conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with
which new subject matter can be inserted into the conference bill." What follows, that is, "occasionally a conference
committee produces unexpected results, results beyond its mandate. . ." is the exception. Then it concludes with a
declaration that: "This is symptomatic of the authoritarian power of conference committee." Are we about to reinstall
another institution that smacks of authoritarianism which, after our past experience, has become anathema to the
Filipino people?
The ruling above can hardly be cited in support of the proposition that a provision in a BICAM report which was not
the subject of differences between the House and Senate versions of a bill cannot be nullified. It submit that such is
not authorized in our Basic Law. Moreover, this decision concerns merely one provision whereas the BICAM Report
that culminated in the EVAT law has a wider scope as it, in fact, expanded the base of the original VAT law by
imposing the tax on several items which were not so covered prior to the EVAT.
One other flaw in most BICAM Reports, not excluding this one under scrutiny, is that, hastily drawn up, it often fails
to conform to the Senate and House Rules requiring no less than a "detailed" and "sufficiently explicit statement of the
changes in or amendments to the subject measure." The Report of the committee, as may be gleaned from the
preceding pages, was no more than the final version of the bill as "passed" by the BICAM. The amendments or
subjects of dissension, as well as the reconciliation made by the committee, are not even pointed out, much less
explained therein.
It may be argued that legislative rules of procedure may properly be suspended, modified, revoked or waived at will
by the legislators themselves. 74 This principle, however, does not come into play in interpreting what the record of the
proceedings shows was, or was not, done. It is rather designed to test the validity of legislative action where the record
shows a final action in violation or disregard of legislative rules. 75 Utilizing the Senate and the House Rules as both
guidelines and yardstick, the BICAM here obviously did not adhere to the rule on what the Report should contain.
Given all these irregularities that have apparently been engrafted into the BICAM system, and which have been
tolerated, if not accorded outright acceptance by everyone involved in or conversant with, the institution, it may be
asked: Why not leave well enough alone?
That these practices have remained unchallenged in the past does not justify our closing our eyes and turning a deaf
ear to them. Writ large is the spectacle of a mechanism ensconced in the very heart of the people's legislative halls,
that now stands indicted with the charge of arrogating legislative powers unto itself through the use of dubious
"shortcuts." Here, for the people to judge, is the "mother of all shortcuts."
In the petitions at bench, we are confronted with the enactment of a tax law which was designed to broaden the tax
base. It is rote learning for any law student that as an attribute of sovereignty, the power to tax is "the strongest of all
the powers of government." 76 Admittedly, "for all its plenitude, the power to tax is not unconfined. There are
restrictions." 77 Were there none, then the oft-quoted 1803 dictum of Chief Justice Marshall that "the power to tax
involves the power to destroy" 78 would be a truism. Happily, we can concur with, and the people can find comfort in,
the reassuring words of Mr. Justice Holmes: "The power to tax is not the power to destroy while this Court sits."79
Manakanaka, mayroong dumudulog dito sa Kataastaasang Hukuman na may kamangha-manghang hinaing. Angkop
na halimbawa ay ang mga petisyong iniharap ngayon sa amin.
Ang ilan sa kanila ay mga Senador na nais mapawalang bisa ang isang batas ukol sa buwis na ipinasa mismo nila.
Diumano ito ay hindi tumalima sa mga itinatadhana ng Saligang Batas. Bukod sa rito, tutol sila sa mga bagong talata
na isiningit ng "Bicameral Conference Committee" na nagdagdag ng mga bagong bagay bagay at serbisyo na
papatawan ng buwis. Ayon sa kanila, ginampanan ng komiteng iyan ang gawain na nauukol sa buong Kongreso. Kung
kaya't ang nararapat na mangyari ay ihatol ng Kataastaasang Hukuman na malabis na pagsasamantala sa sariling
pagpapasiya ang ginawa ng Kongreso.
Bagama't bantulot kaming makialam sa isang kapantay na sangay ng Pamahalaan, hindi naman nararapat na kami ay
tumangging gampanan ang tungkulin na iniatas sa amin ng Saligang Batas. Lalu't-lalo nang ang batas na kinauukulan
ay maaaring makapinsala sa nakararami sa sambayanan.
Sa ganang akin, itong batas na inihaharap sa amin ngayon, ay totoong labag sa Saligang Batas, samakatuwid ay
walang bisa. Nguni't ito ay nauukol lamang sa mga katiwalian na may kinalaman sa paraan ng pagpapasabatas nito.
Hindi namin patakaran ang makialam o humadlang sa itinakdang gawain ng Saligang Batas sa Pangulo at sa
Kongreso. Ang dalawang sangay na iyan ng Pamahalaan ang higit na maalam ukol sa kung ang anumang panukalang
batas ay nararapat, kanais-nais o magagampanan; kung kaya't hindi kami nararapat na maghatol o magpapasiya sa
mga bagay na iyan. Ang makapapataw ng angkop na lunas sa larangan na iyan ay ang mismong mga kinatawan ng
sambayanan sa Kongreso.
Faced with this challenge of protecting the rights of the people by striking down a law that I submit is unconstitutional
and in the process, checking the wonted excesses of the Bicameral Conference Committee system, I see in this case a
suitable vehicle to discharge the Court's Constitutional mandate and duty of declaring that there has indeed been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Legislature.
Republic Act No. 7716, being unconstitutional and void, I find no necessity to rule on the substantive issues as dealt
with in the majority opinion as they have been rendered moot and academic. These issues pertain to the intrinsic
merits of the law. It is axiomatic that the wisdom, desirability and advisability of enacting certain laws lie, not within
the province of the Judiciary but that of the political departments, the Executive and the Legislative. The relief sought
by petitioners from what they perceive to be the harsh and onerous effect of the EVAT on the people is within their
reach. For Congress, of which Senator-petitioners are a part, can furnish the solution by either repealing or amending
the subject law.
For the foregoing reasons, I VOTE to GRANT the petition.

PUNO, J.:
Petitioners plead that we affirm the self-evident proposition that they who make law should not break the law. There
are many evils whose elimination can be trusted to time. The evil of lawlessness in lawmaking cannot. It must be slain
on sight for it subverts the sovereignty of the people.
First, a fast snapshot of the facts. On November 17, 1993, the House of Representatives passed on third reading House
Bill (H.B.) No. 11197 entitled "An Act Restructuring the Value Added Tax (VAT) System to Widen its Tax Base and
Enhance its Administration, Amending for These Purposes Sections 99, 100, 102 to 108 and 110 Title V and 236, 237
and 238 of Title IX, and Repealing Sections 113 and 114 of Title V, all of the National Internal Revenue Code as
Amended." The vote was 114 Yeas and 12 Nays. The next day, November 18, 1993, H.B.
No. 11197 was transmitted to the Senate for its concurrence by the Hon. Camilo L. Sabio, Secretary General of the
House of Representatives.
On February 7, 1994, the Senate Committee on Ways and Means submitted Senate Bill (S.B.) No. 1630,
recommending its approval "in substitution of Senate Bill No. 1129 taking into consideration P.S. Res. No. 734 and
House Bill No. 11197." On March 24, 1994, S.B. No. 1630 was approved on second and third readings. On the same
day, the Senate, thru Secretary Edgardo E. Tumangan, requested the House for a conference "in view of the
disagreeing provisions of S.B. No. 1630 and H.B. No. 11197." It designated the following as members of its
Committee: Senators Ernesto F. Herrera, Leticia R. Shahani, Alberto S. Romulo, John H. Osmeña, Ernesto M.
Maceda, Blas F. Ople, Francisco S. Tatad, Rodolfo G. Biazon, and Wigberto S. Tañada. On the part of the House, the
members of the Committee were: Congressmen Exequiel B. Javier, James L. Chiongbian, Renato V. Diaz, Arnulfo P.
Fuentebella, Mariano M. Tajon, Gregorio Andolong, Thelma Almario, and Catalino Figueroa. After five (5)
meetings, 1 the Bicameral Conference Committee submitted its Report to the Senate and the House stating:
CONFERENCE COMMITTEE REPORT
The Conference Committee on the disagreeing provisions of House Bill No. 11197, entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116
OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113 AND
114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED
and Senate Bill No. 1630 entitled:
AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO WIDEN ITS TAX
BASE AND ENHANCE ITS ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 106, 107, 108 AND 110 OF TITLE IV, 112, 115, 117 AND 121
OF TITLE V, AND 236, 237, AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114,
116, 119 AND 120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES
having met, after full and free conference, has agreed to recommend and do hereby recommend to
their respective Houses that House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the
conferees.
Approved.
The Report was approved by the House on April 27, 1994. The Senate approved it on May 2, 1994. On May 5, 1994,
the President signed the bill into law as R.A. No. 7716.
There is no question that the Bicameral Conference Committee did more than reconcile differences between House
Bill No. 11197 and Senate Bill No. 1630. In several instances, it either added new provisions or deleted provisions
already approved in House Bill No. 11197 and Senate Bill No. 1630. These insertions/deletions numbering twenty
four (24) are specified in detail by petitioner Tolentino as follows: 2
SOME SALIENT POINTS ON THE
(AMENDMENTS TO THE VATE LAW [EO 273])
SHOWING ADDITIONS/INSERTIONS MADE BY BICAMERAL
CONFERENCE COMMITTEE TO SB 1630 & HB 11197
I On Sec. 99 of the NIRC
 H.B. 11197 amends this section by including, as liable to VAT, any person who in the course of trade
of business, sells, barters, or exchanges goods or PROPERTIES and any person who LEASES
PERSONAL PROPERTIES.
Senate Bill 1630 deleted Sec. 99 to give way for a new Section 99 - DEFINITION OF TERMS -
where eleven (11) terms were defined. A new Section, Section 99-A was incorporated which included
as subject to VAT, one who sells, exchanges, barters PROPERTIES and one who imports
PROPERTIES.
The BCC version (R.A. 7716) makes LESSORS of goods OR PROPERTIES and importers of goods
LIABLE to VAT.
II On Section 100 (VAT on sale of goods)
A. The H.B., S.B., and the BCC (R.A. 7716) all included sale of PROPERTIES as subject to VAT.
The term GOODS or PROPERTIES includes the following:
HB (pls. refer SB (pls. refer BCC (RA 7716

to Sec. 2) To Sec. 1(4) (Sec. 2)

1. Right or the 1. The same 1. The same

privilege to use

patent, copyright,

design, or model,

plan, secret

formula or process,

goodwill trademark,

tradebrand or other

like property or

right.
2. Right or the 2. The same 2. The same

privilege to use

in the Philippines

of any industrial,

commercial, or

scientific equip-

ment.

3. Right or the 3. The same 3. The same

privilege to use

motion picture films,

films, tapes and

discs.

4. Radio and 4. The same 4. In addition

Television time to radio and

television time the

 following were

included:

SATELLITE
TRANSMISSION

and CABLE

TELEVISION TIME

5. Other Similar 5. The Same 5. 'Other

properties similar properties'

was deleted

6. - 6. - 6. Real

properties held

primarily for sale to

customers or held

for lease in the

ordinary course or

business
B. The HB and the BCC Bills has each a provision which includes THE SALE OF GOLD TO
BANGKO SENTRAL NG PILIPINAS as falling under the term Export Sales, hence subject to 0%
VAT. The Senate Bill does not contain such provision (See Section 102-A thereof).
III. On Section 102
This section was amended to include as subject to a 10% VAT the gross receipts derived from THE
SALE OR EXCHANGE OF SERVICES, INCLUDING THE USE OR LEASE OF PROPERTIES.
The SB, HB, and BCC have the same provisions on this.
However, on what are included in the term SALE OR EXCHANGE OF SERVICES, the BCC
included/inserted the following (not found in either the House or Senate Bills):
1. Services of lessors of property WHETHER PERSONAL OR REAL; (See BCC Report/Bill p. 7)
2. WAREHOUSING SERVICES (Ibid.,)
3. Keepers of RESTHOUSES, PENSION HOUSES, INNS, RESORTS (Ibid.,)
4. Common carriers by LAND, AIR AND SEA (Ibid.,)
5. SERVICES OF FRANCHISE GRANTEES OF TELEPHONE AND TELEGRAPH;
6. RADIO AND TELEVISION BROADCASTING
7. ALL OTHER FRANCHISE GRANTEES EXCEPT THOSE UNDER SECTION 117 OF THIS
CODE
8. SERVICES OF SURETY, FIDELITY, INDEMNITY, AND BONDING COMPANIES.
9. Also inserted by the BCC (on page B thereof) is the LEASE OR USE OF OR THE RIGHT TO
USE OF SATTELITE TRANSMISSION AND CABLE TELEVISION TIME
IV. On Section 103 (Exempt Transactions)
The BCC deleted subsection (f) in its entirety, despite its retention in both the House and Senate
Bills, thus under RA 7716, the 'printing, publication, importation or sale of books and any newspaper,
magazine, review, or bulletin which appears at regular intervals with fixed prices for subscription and
sale and which is not devoted principally to the publication of advertisements' is subject to VAT.
Subsection (g) was amended by the BCC (both Senate and House Bills did not) by changing the word
TEN to FIVE, thus: "Importation of passenger and/or cargo vessel of more than five thousand ton to
ocean going, including engine and spare parts of said vessel to be used by the importer himself as
operator thereof." In short, importation of vessels with tonnage of more than 5 thousand is VAT
exempt.
Subsection L, was amended by the BCC by adding the qualifying phrase: EXCEPT THOSE
RENDERED BY PROFESSIONALS.
Subsection U which exempts from VAT "Transactions which are exempt under special laws", was
amended by BCC by adding the phrase: EXCEPT THOSE GRANTED UNDER PD NOS. 66, 529,
972, 1491, and 1590, and NON-ELECTRIC COOPERATIVES under RA 6938. This is the reason
why cooperatives are now subject to VAT.
While the SALE OF REAL PROPERTIES was included in the exempt transactions under the House
Bill, the BCC made a qualification by stating:
'(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO CUSTOMERS OR
HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE OR BUSINESS OR REAL
PROPERTY UTILIZED FOR LOW-COST AND SOCIALIZED HOUSING AS DEFINED BY R.A.
NO. 7279 OTHERWISE KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OF
1992 AND OTHER RELATED LAWS.
Under the Senate Bill, the sale of real property utilized for low-cost and socialized housing as defined
by RA 7279, is one of the exempt transactions.
 Under the House Bill, also exempt from VAT, is the SALE OF PROPERTIES OTHER THAN THE
TRANSACTIONS MENTIONED IN THE FOREGOING PARAGRAPHS WITH A GROSS
ANNUAL SALES AND/OR RECEIPTS OF WHICH DOES NOT EXCEED THE AMOUNT
PRESCRIBED IN THE REGULATIONS TO BE PROMULGATED BY THE SECRETARY OF
FINANCE WHICH SHALL NOT BE LESS THAN P350,000.00 OR HIGHER THAN P600,000.00
... Under the Senate Bill, the amount is P240,000.00. The BCC agreed at the amount of not less than
P480,000.00 or more than P720,000.00 SUBJECT TO TAX UNDER SEC. 112 OF THIS CODE.
The BCC did not include, as VAT exempt, the sale or transfer of securities as defined in the Revised
Securities Act (BP 178) which was contained in both Senate and House Bills.
V On Section 104
The phrase INCLUDING PACKAGING MATERIALS was included by the BCC on Section 104 (A)
(1) (B), and the phrase ON WHICH A VALUE-ADDED TAX HAS BEEN ACTUALLY on Section
104 (A) (2).
These phrases are not contained in either House and Senate Bills.
VI On Section 107
Both House and Senate Bills provide for the payment of P500.00 VAT registration fee. The BCC
provides for P1,000.00 VAT fee.
VII On Section 112
While both the Senate and House Bills provide that a person whose sales or receipts and are exempt
under Section 103[w] of the Code, and who are not VAT registered shall pay a tax equivalent to
THREE (3) PERCENT of his gross quarterly sales or receipts, the BCC inserted the phrase: THREE
PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO YEARS
THEREAFTER.
VIII On Section 115
Sec. 17 of SB 1630 Sec. 12 of House Bill 11197 amends this Section by clarifying that common
carriers by land, air or water FOR THE TRANSPORT OF PASSENGERS are subject to Percentage
Tax equivalent to 3% of their quarterly gross sales.
The BCC adopted this and the House Bill's provision that the GROSS RECEIPTS OF COMMON
CARRIERS DERIVED FROM THEIR INCOMING AND OUTGOING FREIGHT SHALL NOT BE
SUBJECTED TO THE LOCAL TAXES IMPOSED UNDER RA 7160. The Senate Bill has no
similar provision.
IX On Section 117
This Section has not been touched by either Senate and House Bills. But the BCC amended it by
subjecting franchises on ELECTRIC, GAS and WATER UTILITIES A TAX OF TWO PERCENT
(2%) ON GROSS RECEIPTS DERIVED ... .
X On Section 121
The BCC adopted the Senate Bills' amendment to this section by subjecting to 5% premium tax
on life insurance business.
The House Bill does not contain this provision.
XI Others
A) The House Bill does not contain any provision on the deferment of VAT collection on Certain
Goods and Services as does the Senate Bill (Section 19, SB 1630). But although the Senate Bill
authorizes the deferment on certain goods and services for no longer than 3 years, there is no specific
provision that authorizes the President to EXCLUDE from VAT any of these. The BCC uses the word
EXCLUDE.
 B) Moreover, the Senate Bill defers the VAT on services of actors and actresses etc. for 3 years but
the BCC defers it for only 2 years.
C) Section 18 of the BCC Bill (RA 7716) is an entirely new provision not contained in the
House/Senate Bills.
D) The period within which to promulgate the implementing rules and regulations is within 60 days
under SB 1630; No specific period under the House Bill, within 90 days under RA 7716 (BCC).
E) The House Bill provides for a general repealing clause i.e., all inconsistent laws etc. are repealed.
Section 16 of the Senate Bill expressly repeals Sections 113, 114, 116, 119 and 120 of the code. The
same Senate Bill however contains a general repealing clause in Sec. 21 thereof.
RA 7716 (BCC's Bill) expressly repeals Sections 113, 114 and 116 of the NIRC; Article 39 (c) (d)
and (e) of EO 226 and provides the repeal of Sec. 119 and 120 of the NIRC upon the expiration of
two (2) years unless otherwise excluded by the President."
The charge that the Bicameral Conference Committee added new provisions in the bills of the two chambers is hardly
disputed by respondents. Instead, respondents justify them. According to respondents: (1) the Bicameral Conference
Committee has an ex post veto power or a veto after the fact of approval of the bill by both Houses; (2) the bill
prepared by the Bicameral Conference Committee, with its additions and deletions, was anyway approved by both
Houses; (3) it was the practice in past Congresses for conference committees to insert in bills approved by the two
Houses new provisions that were not originally contemplated by them; and (4) the enrolled bill doctrine precludes
inquiry into the regularity of the proceedings that led to the enactment of R.A. 7716.
With due respect, I reject these contentions which will cave in on closer examination.
First. There is absolutely no legal warrant for the bold submission that a Bicameral Conference Committee possesses
the power to add/delete provisions in bills already approved on third reading by both Houses or an ex post veto power.
To support this postulate that can enfeeble Congress itself, respondents cite no constitutional provision, no law, not
even any rule or regulation. 3 Worse, their stance is categorically repudiated by the rules of both the Senate and the
House of Representatives which define with precision the parameters of power of a Bicameral Conference Committee.
Thus, Section 209, Rule XII of the Rules of the Senate provides;
In the event that the Senate does not agree with the House of Representatives on the provision of any
bill or joint resolution, the differences shall be settled by a conference committee of both
Houseswhich shall meet within ten days after their composition.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in or amendments to the subject measure, and shall be signed by the conferees. (Italics
supplied)
The counterpart rule of the House of Representatives is cast in near identical language. Section 85 of the Rules of the
House of Representatives pertinently provides:
In the event that the House does not agree with the Senate on the amendments to any bill or joint
resolution, the differences may be settled by a conference committee of both chambers.
... . Each report shall contain a detailed, sufficiently explicit statement of the changes in or
amendments to the subject measure. (Italics supplied)
The Jefferson's Manual has been adopted 4 as a supplement to our parliamentary rules and practice. Section 456 of
Jefferson's Manual similarly confines the powers of a conference committee, viz: 5
The managers of a conference must confine themselves to the differences committed to them ... and
may not include subjects not within the disagreements, even though germane to a question in issue.
This rule of antiquity has been honed and honored in practice by the Congress of the United States. Thus, it is
chronicled by Floyd Biddick, Parliamentarian Emeritus of the United States Senate, viz: 6
Committees of conference are appointed for the sole purpose of compromising and adjusting the
differing and conflicting opinions of the two Houses and the committees of conference alone can
grant compromises and modify propositions of either Houses within the limits of the disagreement.
Conferees are limited to the consideration of differences between the two Houses.
 Conferees shall not insert in their report matters not committed to them by either House, nor shall
they strike from the bill matters agreed to by both Houses. No matter on which there is nothing in
either the Senate or House passed versions of a bill may be included in the conference report and
actions to the contrary would subject the report to a point of order. (Italics ours)
In fine, there is neither a sound nor a syllable in the Rules of the Senate and the House of Representative to support
the thesis of the respondents that a bicameral conference committee is clothed with an ex post vetopower.
But the thesis that a Bicameral Conference Committee can wield ex post veto power does not only contravene the
rules of both the Senate and the House. It wages war against our settled ideals of representative democracy. For the
inevitable, catastrophic effect of the thesis is to install a Bicameral Conference Committee as the Third Chamber of
our Congress, similarly vested with the power to make laws but with the dissimilarity that its laws are not the subject
of a free and full discussion of both Houses of Congress. With such a vagrant power, a Bicameral Conference
Committee acting as a Third Chamber will be a constitutional monstrosity.
It needs no omniscience to perceive that our Constitution did not provide for a Congress composed of three chambers.
On the contrary, section 1, Article VI of the Constitution provides in clear and certain language: "The legislative
power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives ..." Note that in vesting legislative power exclusively to the Senate and the House, the Constitution
used the word "shall." Its command for a Congress of two houses is mandatory. It is not mandatory sometimes.
In vesting legislative power to the Senate, the Constitution means the Senate "... composed of twenty-four Senators ...
elected at large by the qualified voters of the Philippines ... ." 7 Similarly, when the Constitution vested the legislative
power to the House, it means the House "... composed of not more than two hundred and fifty members ... who shall
be elected from legislative districts ... and those who ... shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations." 8 The Constitution thus, did not vest on a Bicameral
Conference Committee with an ad hoc membership the power to legislate for it exclusively vested legislative power to
the Senate and the House as co-equal bodies. To be sure, the Constitution does not mention the Bicameral Conference
Committees of Congress. No constitutional status is accorded to them. They are not even statutory creations. They
owe their existence from the internal rules of the two Houses of Congress. Yet, respondents peddle the disconcerting
idea that they should be recognized as a Third Chamber of Congress and with ex post veto power at that.
The thesis that a Bicameral Conference Committee can exercise law making power with ex post veto power is
freighted with mischief. Law making is a power that can be used for good or for ill, hence, our Constitution carefully
laid out a plan and a procedure for its exercise. Firstly, it vouchsafed that the power to make laws should be exercised
by no other body except the Senate and the House. It ought to be indubitable that what is contemplated is the Senate
acting as a full Senate and the House acting as a full House. It is only when the Senate and the House act as whole
bodies that they truly represent the people. And it is only when they represent the people that they can legitimately
pass laws. Laws that are not enacted by the people's rightful representatives subvert the people's sovereignty.
Bicameral Conference Committees, with their ad hoc character and limited membership, cannot pass laws for they do
not represent the people. The Constitution does not allow the tyranny of the majority. Yet, the respondents will impose
the worst kind of tyranny - the tyranny of the minority over the majority. Secondly, the Constitution delineated in deft
strokes the steps to be followed in making laws. The overriding purpose of these procedural rules is to assure that only
bills that successfully survive the searching scrutiny of the proper committees of Congress and the full and unfettered
deliberations of both Houses can become laws. For this reason, a bill has to undergo three (3) mandatory separate
readings in each House. In the case at bench, the additions and deletions made by the Bicameral Conference
Committee did not enjoy the enlightened studies of appropriate committees. It is meet to note that the complexities of
modern day legislations have made our committee system a significant part of the legislative process. Thomas Reed
called the committee system as "the eye, the ear, the hand, and very often the brain of the house." President Woodrow
Wilson of the United States once referred to the government of the United States as "a government by the Chairman of
the Standing Committees of Congress... " 9 Neither did these additions and deletions of the Bicameral Conference
Committee pass through the coils of collective deliberation of the members of the two Houses acting separately. Due
to this shortcircuiting of the constitutional procedure of making laws, confusion shrouds the enactment of R.A. No.
7716. Who inserted the additions and deletions remains a mystery. Why they were inserted is a riddle. To use a
Churchillian phrase, lawmaking should not be a riddle wrapped in an enigma. It cannot be, for Article II, section 28 of
the Constitution mandates the State to adopt and implement a "policy of full public disclosure of all its transactions
involving public interest." The Constitution could not have contemplated a Congress of invisible and unaccountable
John and Mary Does. A law whose rationale is a riddle and whose authorship is obscure cannot bind the people.
All these notwithstanding, respondents resort to the legal cosmetology that these additions and deletions should
govern the people as laws because the Bicameral Conference Committee Report was anyway submitted to and
approved by the Senate and the House of Representatives. The submission may have some merit with respect to
provisions agreed upon by the Committee in the process of reconciling conflicts between S.B. No. 1630 and H.B. No.
11197. In these instances, the conflicting provisions had been previously screened by the proper committees,
deliberated upon by both Houses and approved by them. It is, however, a different matter with respect to additions and
deletions which were entirely new and which were made not to reconcile inconsistencies between S.B. No. 1630 and
H.B. No. 11197. The members of the Bicameral Conference Committee did not have any authority to add new
provisions or delete provisions already approved by both Houses as it was not necessary to discharge their limited task
of reconciling differences in bills. At that late stage of law making, the Conference Committee cannot add/delete
provisions which can become laws without undergoing the study and deliberation of both chambers given to bills on
1st, 2nd, and 3rd readings. Even the Senate and the House cannot enact a law which will not undergo these mandatory
three (3) readings required by the Constitution. If the Senate and the House cannot enact such a law, neither can the
lesser Bicameral Conference Committee.
Moreover, the so-called choice given to the members of both Houses to either approve or disapprove the said
additions and deletions is more of an optical illusion. These additions and deletions are not submitted separately for
approval. They are tucked to the entire bill. The vote is on the bill as a package, i.e., together with the insertions and
deletions. And the vote is either "aye" or "nay," without any further debate and deliberation. Quite often, legislators
vote "yes" because they approve of the bill as a whole although they may object to its amendments by the Conference
Committee. This lack of real choice is well observed by Robert Luce: 10
Their power lies chiefly in the fact that reports of conference committees must be accepted without
amendment or else rejected in toto. The impulse is to get done with the matter and so the motion to
accept has undue advantage, for some members are sure to prefer swallowing unpalatable provisions
rather than prolong controversy. This is the more likely if the report comes in the rush of business
toward the end of a session, when to seek further conference might result in the loss of the measure
altogether. At any time in the session there is some risk of such a result following the rejection of a
conference report, for it may not be possible to secure a second conference, or delay may give
opposition to the main proposal chance to develop more strength.
In a similar vein, Prof. Jack Davies commented that "conference reports are returned to assembly and Senate on a
take-it or leave-it-basis, and the bodies are generally placed in the position that to leave-it is a practical
impossibility." 11 Thus, he concludes that "conference committee action is the most undemocratic procedure in the
legislative process." 12
The respondents also contend that the additions and deletions made by the Bicameral Conference Committee were in
accord with legislative customs and usages. The argument does not persuade for it misappreciates the value of
customs and usages in the hierarchy of sources of legislative rules of procedure. To be sure, every legislative assembly
has the inherent right to promulgate its own internal rules. In our jurisdiction, Article VI, section 16(3) of the
Constitution provides that "Each House may determine the rules of its proceedings ..." But it is hornbook law that the
sources of Rules of Procedure are many and hierarchical in character. Mason laid them down as follows: 13
xxx xxx xxx
1. Rules of Procedure are derived from several sources. The principal sources are as follows:
a. Constitutional rules.
b. Statutory rules or charter provisions.
c. Adopted rules.
d. Judicial decisions.
e. Adopted parliamentary authority.
f. Parliamentary law.
g. Customs and usages.
2. The rules from the different sources take precedence in the order listed above except that judicial
decisions, since they are interpretations of rules from one of the other sources, take the same
 precedence as the source interpreted. Thus, for example, an interpretation of a constitutional
provision takes precedence over a statute.
3. Whenever there is conflict between rules from these sources the rule from the source listed earlier
prevails over the rule from the source listed, later. Thus, where the Constitution requires three
readings of bills, this provision controls over any provision of statute, adopted rules, adopted manual,
or of parliamentary law, and a rule of parliamentary law controls over a local usage but must give
way to any rule from a higher source of authority. (Italics ours)
As discussed above, the unauthorized additions and deletions made by the Bicameral Conference Committee violated
the procedure fixed by the Constitution in the making of laws. It is reasonless for respondents therefore to justify these
insertions as sanctioned by customs and usages.
Finally, respondents seek sanctuary in the conclusiveness of an enrolled bill to bar any judicial inquiry on whether
Congress observed our constitutional procedure in the passage of R.A. No. 7716. The enrolled bill theory is a
historical relic that should not continuously rule us from the fossilized past. It should be immediately emphasized that
the enrolled bill theory originated in England where there is no written constitution and where Parliament is
supreme. 14 In this jurisdiction, we have a written constitution and the legislature is a body of limited powers.
Likewise, it must be pointed out that starting from the decade of the 40's, even American courts have veered away
from the rigidity and unrealism of the conclusiveness of an enrolled bill. Prof. Sutherland observed: 15
xxx xxx xxx.
Where the failure of constitutional compliance in the enactment of statutes is not discoverable from
the face of the act itself but may be demonstrated by recourse to the legislative journals, debates,
committee reports or papers of the governor, courts have used several conflicting theories with which
to dispose of the issue. They have held: (1) that the enrolled bill is conclusive and like the sheriff's
return cannot be attacked; (2) that the enrolled bill is prima facie correct and only in case the
legislative journal shows affirmative contradiction of the constitutional requirement will the bill be
held invalid, (3) that although the enrolled bill is prima facie correct, evidence from the journals, or
other extrinsic sources is admissible to strike the bill down; (4) that the legislative journal is
conclusive and the enrolled bill is valid only if it accords with the recital in the journal and the
constitutional procedure.
Various jurisdictions have adopted these alternative approaches in view of strong dissent and dissatisfaction against
the philosophical underpinnings of the conclusiveness of an enrolled bill. Prof. Sutherland further observed:
... Numerous reasons have been given for this rule. Traditionally, an enrolled bill was 'a record' and as
such was not subject to attack at common law. Likewise, the rule of conclusiveness was similar to the
common law rule of the inviolability of the sheriff's return. Indeed, they had the same origin, that is,
the sheriff was an officer of the king and likewise the parliamentary act was a regal act and no official
might dispute the king's word. Transposed to our democratic system of government, courts held that
as the legislature was an official branch of government the court must indulge every presumption that
the legislative act was valid. The doctrine of separation of powers was advanced as a strong reason
why the court should treat the acts of a co-ordinate branch of government with the same respect as it
treats the action of its own officers; indeed, it was thought that it was entitled to even greater respect,
else the court might be in the position of reviewing the work of a supposedly equal branch of
government. When these arguments failed, as they frequently did, the doctrine of convenience was
advanced, that is, that it was not only an undue burden upon the legislature to preserve its records to
meet the attack of persons not affected by the procedure of enactment, but also that it unnecessarily
complicated litigation and confused the trial of substantive issues.
Although many of these arguments are persuasive and are indeed the basis for the rule in many states
today, they are not invulnerable to attack. The rule most relied on - the sheriff's return or sworn
official rule - did not in civil litigation deprive the injured party of an action, for always he could sue
the sheriff upon his official bond. Likewise, although collateral attack was not permitted, direct attack
permitted raising the issue of fraud, and at a later date attack in equity was also available; and that the
evidence of the sheriff was not of unusual weight was demonstrated by the fact that in an action
against the sheriff no presumption of its authenticity prevailed.
 The argument that the enrolled bill is a 'record' and therefore unimpeachable is likewise misleading,
for the correction of records is a matter of established judicial procedure. Apparently, the justification
is either the historical one that the king's word could not be questioned or the separation of powers
principle that one branch of the government must treat as valid the acts of another.
Persuasive as these arguments are, the tendency today is to avoid reaching results by artificial presumptions and thus
it would seem desirable to insist that the enrolled bill stand or fall on the basis of the relevant evidence which may be
submitted for or against it. (Italics ours)
Thus, as far back as the 1940's, Prof. Sutherland confirmed that "... the tendency seems to be toward the abandonment
of the conclusive presumption rule and the adoption of the third rule leaving only a prima faciepresumption of validity
which may be attacked by any authoritative source of information." 16
I am not unaware that this Court has subscribed to the conclusiveness of an enrolled bill as enunciated in the 1947
lead case of Mabanag v. Lopez Vito, and reiterated in subsequent cases. 17
With due respect, I submit that these rulings are no longer good law. Part of the ratiocination in Mabanag states:
xxx xxx xxx
If for no other reason than that it conforms to the expressed policy of our law making body, we
choose to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No.
2210, provides: 'Official documents' may be proved as follows: * * * (2) the proceedings of the
Philippine Commission, or of any legislative body that may be provided for in the Philippine Islands,
or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or
resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, That
in the case of Acts of the Philippine Commission or the Philippine Legislature, when there is an
existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof.
Suffice to state that section 313 of the Old Code of Civil Procedure as amended by Act No. 2210 is no longer in our
statute books. It has long been repealed by the Rules of Court. Mabanag also relied on jurisprudence and authorities in
the United States which are under severe criticisms by modern scholars. Hence, even in the United States the
conclusiveness of an enrolled bill has been junked by most of the States. It is also true that as late as last year, in the
case of Philippine Judges Association v. Prado, op. cit., this Court still relied on the conclusiveness of an enrolled bill
as it refused to invalidate a provision of law on the ground that it was merely inserted by the bicameral conference
committee of both Houses. Prado, however, is distinguishable. In Prado, the alleged insertion of the second paragraph
of section 35 of R.A. No. 7354 repealing the franking privilege of the judiciary does not appear to be an uncontested
fact. In the case at bench, the numerous additions/deletions made by the Bicameral Conference Committee as detailed
by petitioners Tolentino and Salonga are not disputed by the respondents. In Prado, the Court was not also confronted
with the argument that it can no longer rely on the conclusiveness of an enrolled bill in light of the new provision in
the Constitution defining judicial power. More specifically, section 1 of Article VIII now provides:
Section 1.The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Italics supplied)
Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional Commission
explained the sense and the reach of judicial power as follows: 18
xxx xxx xxx
... In other words, the judiciary is the final arbiter on the question of whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not
only a judicial power but a duty to pass judgment on matters of this nature.
 This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute political
question. (Italics ours)
The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to
exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any
act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting
to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court
against the other branches of government despite their more democratic character, the President and the legislators
being elected by the people.
It is, however, theorized that this provision is nothing new. 19 I beg to disagree for the view misses the significant
changes made in our constitutional canvass to cure the legal deficiencies we discovered during martial law. One of the
areas radically changed by the framers of the 1987 Constitution is the imbalance of power between and among the
three great branches of our government - the Executive, the Legislative and the Judiciary. To upgrade the powers of
the Judiciary, the Constitutional Commission strengthened some more the independence of courts. Thus, it further
protected the security of tenure of the members of the Judiciary by providing "No law shall be passed reorganizing the
Judiciary when it undermines the security of tenure of its Members." 20 It also guaranteed fiscal autonomy to the
Judiciary. 21
More, it depoliticalized appointments in the judiciary by creating the Judicial and Bar Council which was tasked with
screening the list of prospective appointees to the judiciary. 22 The power of confirming appointments to the judiciary
was also taken away from Congress. 23 The President was likewise given a specific time to fill up vacancies in the
judiciary - ninety (90) days from the occurrence of the vacancy in case of the Supreme Court 24and ninety (90) days
from the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies in the lower
courts. 25 To further insulate appointments in the judiciary from the virus of politics, the Supreme Court was given the
power to "appoint all officials and employees of the Judiciary in accordance with the Civil Service Law." 26 And to
make the separation of the judiciary from the other branches of government more watertight, it prohibited members of
the judiciary to be " ... designated to any agency performing quasi judicial or administrative functions." 27 While the
Constitution strengthened the sinews of the Supreme Court, it reduced the powers of the two other branches of
government, especially the Executive. Notable of the powers of the President clipped by the Constitution is his power
to suspend the writ of habeas corpus and to proclaim martial law. The exercise of this power is now subject to
revocation by Congress. Likewise, the sufficiency of the factual basis for the exercise of said power may be reviewed
by this Court in an appropriate proceeding filed by any citizen. 28
The provision defining judicial power as including the "duty of the courts of justice ... to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government" constitutes the capstone of the efforts of the Constitutional Commission to
upgrade the powers of this Court vis-a-vis the other branches of government. This provision was dictated by our
experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses
in government. As sharply stressed by petitioner Salonga, this provision is distinctly Filipino and its interpretation
should not be depreciated by undue reliance on inapplicable foreign jurisprudence. It is thus crystal clear that unlike
other Supreme Courts, this Court has been mandated by our new Constitution to be a more active agent in annulling
acts of grave abuse of discretion committed by a branch of government or any of its officials. This new role, however,
will not compel the Court, appropriately defined by Prof. A. Bickel as the least dangerous branch of government, to
assume imperial powers and run roughshod over the principle of separation of power for that is judicial tyranny by
any language. But while respecting the essential of the principle of separation of power, the Court is not to be
restricted by its non-essentials. Applied to the case at bench, by voiding R.A. No. 7716 on the ground that its
enactment violated the procedure imposed by the Constitution in lawmaking, the Court is not by any means wrecking
the wall separating the powers between the legislature and the judiciary. For in so doing, the Court is not engaging in
lawmaking which is the essence of legislative power. But the Court's interposition of power should not be defeated by
the conclusiveness of the enrolled bill. A resort to this fiction will result in the enactment of laws not properly
deliberated upon and passed by Congress. Certainly, the enrolled bill theory was not conceived to cover up violations
of the constitutional procedure in law making, a procedure intended to assure the passage of good laws. The
conclusiveness of the enrolled bill can, therefore, be disregarded for it is not necessary to preserve the principle of
separation of powers.
In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of
discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by
our distinct experience as a nation, is not merely evolutionary but revolutionary. Under the 1935 and 1973
Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress - this Court is mandated to approach constitutional violations not by finding
out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past
that petrifies the present.
I vote to declare R.A. No. 7716 unconstitutional.

BELLOSILLO, J.:
With a consensus already reached after due deliberations, silence perhaps should be the better part of discretion,
except to vote. The different views and opinions expressed are so persuasive and convincing; they are more than
enough to sway the pendulum for or against the subject petitions. The penetrating and scholarly dissertations of my
brethren should dispense with further arguments which may only confound and confuse even the most learned of men.
But there is a crucial point, a constitutional issue which, I submit, has been belittled, treated lightly, if not almost
considered insignificant and purposeless. It is elementary, as much as it is fundamental. I am referring to the word
"exclusively" appearing in Sec. 24, Art. VI, of our 1987 Constitution. This is regrettable, to say the least, as it involves
a constitutional mandate which, wittingly or unwittingly, has been cast aside as trivial and meaningless.
A comparison of the particular provision on the enactment of revenue bills in the U.S. Constitution with its
counterpart in the Philippine Constitution will help explain my position.
Under the U.S. Constitution, "[a]ll bills for raising revenue shall originate in the House of Representatives; but the
Senate may propose or concur with amendments as on other bills" (Sec. 7, par. [1], Art. I). In contrast, our 1987
Constitution reads: "All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose
or concur with amendments" (Sec. 24, Art. VI; Italics supplied).
As may be gleaned from the pertinent provision of our Constitution, all revenue bills are required to originate
"exclusively" in the House of Representatives. On the other hand, the U.S. Constitution does not use the word
"exclusively;" it merely says, "[a]ll bills for raising revenue shall originate in the House of Representatives."
Since the term "exclusively" has already been adequately defined in the various opinions, as to which there seems to
be no dispute, I shall no longer offer my own definition.
Verily, the provision in our Constitution requiring that all revenue bills shall originate exclusively from the Lower
House is mandatory. The word "exclusively" is an "exclusive word," which is indicative of an intent that the provision
is mandatory. 1 Hence, all American authorities expounding on the meaning and application of Sec. 7, par. (1), Art. I,
of the U.S. Constitution cannot be used in the interpretation of Sec. 24, Art. VI, of our 1987 Constitution which has a
distinct feature of "exclusiveness" all its own. Thus, when our Constitution absolutely requires - as it is mandatory -
that a particular bill should exclusively emanate from the Lower House, there is no alternative to the requirement that
the bill to become valid law must originate exclusively from that House.
In the interpretation of constitutions, questions frequently arise as to whether particular sections are mandatory or
directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the
tendency of the legislature to disregard provisions which are not said to be mandatory. Accordingly, it is the general
rule to regard constitutional provisions as mandatory, and not to leave any discretion to the will of the legislature to
obey or disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably
manifest that the provisions are intended to be merely directory. So strong is the inclination in favor of giving
obligatory force to the terms of the organic law that it has even been said that neither by the courts nor by any other
department of the government may any provision of the Constitution be regarded as merely directory, but that each
and everyone of its provisions should be treated as imperative and mandatory, without reference to the rules and
distinguishing between the directory and the mandatory statutes. 2
The framers of our 1987 Constitution could not have used the term "exclusively" if they only meant to replicate and
adopt in toto the U.S. version. By inserting "exclusively" in Sec. 24, Art. VI, of our Constitution, their message is
clear: they wanted it different, strong, stringent. There must be a compelling reason for the inclusion of the word
"exclusively," which cannot be an act of retrogression but progression, an improvement on its precursor. Thus,
"exclusively" must be given its true meaning, its purpose observed and virtue recognized, for it could not have been
conceived to be of minor consequence. That construction is to be sought which gives effect to the whole of the statute
- its every word. Ut magis valeat quam pereat.
Consequently, any reference to American authorities, decisions and opinions, however wisely and delicately put, can
only mislead in the interpretation of our own Constitution. To refer to them in defending the constitutionality of R.A.
7716, subject of the present petitions, is to argue on a false premise, i.e., that Sec. 24, Art. VI, of our 1987 Constitution
is, or means exactly, the same as Sec. 7, par. (1), Art. I, of the U.S. Constitution, which is not correct. Hence, only a
wrong conclusion can be drawn from a wrong premise.
For example, it is argued that in the United States, from where our own legislature is patterned, the Senate can
practically substitute its own tax measure for that of the Lower House. Thus, according to the Majority, citing an
American case, "the validity of Sec. 37 which the Senate had inserted in the Tariff Act of 1909 by imposing an ad
valorem tax based on the weight of vessels, was upheld against the claim that the revenue bill originated in the Senate
in contravention of Art. I, Sec. 7, of the U.S. Constitution." 3 In an effort to be more convincing, the Majority even
quotes the footnote in Introduction to American Government by F.A. Ogg and P.O. Ray which reads -
Thus in 1883 the upper house struck out everything after the enacting clause of a tariff bill and wrote
its own measure, which the House eventually felt obliged to accept. It likewise added 847
amendments to the Payne-Aldrich tariff act of 1909, dictated the schedules of the emergency tariff act
of 1921, rewrote an extensive tax revision bill in the same year, and recast most of the permanent
tariff bill of 1922 4 -
which in fact suggests, very clearly, that the subject revenue bill actually originated from the Lower House and was
only amended, perhaps considerably, by the Senate after it was passed by the former and transmitted to the latter.
In the cases cited, where the statutes passed by the U.S. Congress were upheld, the revenue bills did not actually
originate from the Senate but, in fact, from the Lower House. Thus, the Supreme Court of the United States, speaking
through Chief Justice White in Rainey v. United States 5 upheld the revenue bill passed by Congress and adopted the
ruling of the lower court that -
... the section in question is not void as a bill for raising revenue originating in the Senate and not in
the House of Representatives. It appears that the section was proposed by the Senate as an
amendment to a bill for raising revenue which originated in the House. That is sufficient.
Flint v. Stone Tracy Co., 6 on which the Solicitor General heavily leans in his Consolidated Comment as well as in his
Memorandum, does not support the thesis of the Majority since the subject bill therein actually originated from the
Lower House and not from the Senate, and the amendment merely covered a certain provision in the House bill.
In fine, in the cases cited which were lifted from American authorities, it appears that the revenue bills in question
actually originated from the House of Representatives and were amended by the Senate only after they were
transmitted to it. Perhaps, if the factual circumstances in those cases were exactly the same as the ones at bench, then
the subject revenue or tariff bill may be upheld in this jurisdiction on the principle of substantial compliance, as they
were in the United States, except possibly in instances where the House bill undergoes what is now referred to as
"amendment by substitution," for that would be in derogation of our Constitution which vests solely in the House of
Representatives the power to initiate revenue bills. A Senate amendment by substitution simply means that the bill in
question did not in effect originate from the lower chamber but from the upper chamber and not disguises itself as a
mere amendment of the House version.
It is also theorized that in the U.S., amendment by substitution is recognized. That may be true. But the process may
be validly effective only under the U.S. Constitution. The cases before us present a totally different factual backdrop.
Several months before the Lower House could even pass HB No. 11197, P.S. Res. No. 734 and SB No. 1129 had
already been filed in the Senate. Worse, the Senate subsequently approved SB No. 1630 "in substitution of SB No.
1129, taking into consideration P.S. Res. No. 734 and HB No. 11197," and not HB No. 11197 itself "as amended."
Here, the Senate could not have proposed or concurred with amendments because there was nothing to concur with or
amend except its own bill. It must be stressed that the process of concurring or amending presupposes that there exists
a bill upon which concurrence may be based or amendments introduced. The Senate should have reported out HB No.
11197, as amended, even if in the amendment it took into consideration SB No. 1630. It should not have submitted to
the Bicameral Conference Committee SB No. 1630 which, admittedly, did not originate exclusively from the Lower
House.
But even assuming that in our jurisdiction a revenue bill of the Lower House may be amended by substitution by the
Senate - although I am not prepared to accept it in view of Sec. 24, Art. VI, of our Constitution - still R.A. 7716 could
not have been the result of amendment by substitution since the Senate had no House bill to speak of that it could
amend when the Senate started deliberating on its own version.
Be that as it may, I cannot rest easy on the proposition that a constitutional mandate calling for the exclusive power
and prerogative of the House of Representatives may just be discarded and ignored by the Senate. Since the
Constitution is for the observance of all - the judiciary as well as the other departments of government - and the judges
are sworn to support its provisions, the courts are not at liberty to overlook or disregard its commands. And it is not
fair and just to impute to them undue interference if they look into the validity of legislative enactments to determine
whether the fundamental law has been faithfully observed in the process. It is their duty to give effect to the existing
Constitution and to obey all constitutional provisions irrespective of their opinion as to the wisdom of such provisions.
The rule is fixed that the duty in a proper case to declare a law unconstitutional cannot be declined and must be
performed in accordance with the deliberate judgment of the tribunal before which the validity of the enactment is
directly drawn into question. When it is clear that a statute transgresses the authority vested in the legislature by the
Constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shirk from it without
violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state
is imperative and unceasing; and, as Chief Justice Marshal said, whenever a statute is in violation of the fundamental
law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the
destruction of the Constitution. Since the question as to the constitutionality of a statute is a judicial matter, the courts
will not decline the exercise of jurisdiction upon the suggestion that action might be taken by political agencies in
disregard of the judgment of the judicial tribunals. 7
It is my submission that the power and authority to originate revenue bills under our Constitution is
vestedexclusively in the House of Representatives. Its members being more numerous than those of the Senate, elected
more frequently, and more directly represent the people, are therefore considered better aware of the economic life of
their individual constituencies. It is just proper that revenue bills originate exclusively from them.
In this regard, we do not have to devote much time delving into American decisions and opinions and invoke them in
the interpretation of our own Constitution which is different from the American version, particularly on the enactment
of revenue bills. We have our own Constitution couched in a language our own legislators thought best. Insofar as
revenue bills are concerned, our Constitution is not American; it is distinctively Filipino. And no amplitude of
legerdemain can detract from our constitutional requirement that all appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local application, and private bills shall originateexclusively in the
House of Representatives, although the Senate may propose or concur with amendments.
In this milieu, I am left no option but to vote to grant the petitions and strike down R.A. 7716 as unconstitutional.

G.R. No. 119673 July 26, 1996

IGLESIA NI CRISTO, (INC.), petitioner,

vs.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND
TELEVISION and HONORABLE HENRIETTA S. MENDOZA, respondents.

PUNO, J.:p
This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals affirming the action of the respondent Board of Review for Moving
Pictures and Television which x-rated the TV Program "Ang Iglesia ni Cristo."

Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang Iglesia ni
Cristo" aired on Channel 2 every Saturday and on Channel 13 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, October and November 1992 petitioner submitted to the respondent Board of
Review for Moving Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The
Board classified the series as "X" or not for public viewing on the ground that they "offend and constitute an attack
against other religions which is expressly prohibited by law."
Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it appealed to the
Office of the President the classification of its TV Series No. 128. It succeeded in its appeal for on December 18,
1992, the Office of the President reversed the decision of the respondent Board. Forthwith, the Board allowed Series
No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-14280, with the RTC,
NCR Quezon City.1 Petitioner alleged that the respondent Board acted without jurisdiction or with grave abuse of
discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited its TV
Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power under PD No. 1986
in relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary injunction. The
parties orally argued and then marked their documentary evidence. Petitioner submitted the following as its
exhibits, viz.:
(1) Exhibit "A," respondent Board's Voting Slip for Television showing its September 9, 1992 action
on petitioner's Series No. 115 as follows:2
REMARKS:
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 remarks which are direct criticism which affect other religions.
Need more opinions for this particular program. Please subject to more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its September 11, 1992
subsequent action on petitioner's Series No. 115 as follows:3
REMARKS:
This program is criticizing different religions, based on their own interpretation of the Bible.
We suggest that the program should delve on explaining their own faith and beliefs and avoid attacks
on other faith.
(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9, 1992 action on
petitioner's Series No. 119, as follows:4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic)
veneration of the Virgin Mary 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.
(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October 20, 1992 action
on petitioner's Series No. 121 as follows:5
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they do on, specifically, the
Catholic religion.
I 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.
(5) Exhibit "D," respondent Board's Voting Slip for Television showing its November 20, 1992 action
on petitioner's Series No. 128 as follows:6
 REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and Protestant's beliefs.
We suggest a second review.
(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting Corporation
dated September 1, 1992.7
(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation.8
(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante,
Sr., addressed for Henrietta S. Mendez reversing the decision of the respondent Board which x-rated
the showing of petitioner's Series No. 129. The letter reads in part:
xxx xxx xxx
The television episode in question is protected by the constitutional guarantee of free
speech and expression under Article III, section 4 of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the
episode poses any clear and present danger sufficient to limit the said constitutional
guarantee.
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed to
President Fidel V. Ramos appealing the action of the respondent Board x-rating petitioner's Series
No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated December 18, 1992
allowing the showing of Series No. 128 under parental guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era
Broadcasting Service which reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please
be informed that the Board was constrained to deny your show a permit to exhibit.
The material involved constitute an attack against another religion which is
expressly prohibited by law. Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on
petitioner's bond o P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs.9 The pre-trial briefs show that
the parties' evidence is basically the evidence they submitted in the hearing of the issue of preliminary injunction. 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 Judgment,10 on December 15, 1993,
the dispositive portion of which reads:
xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Moving
Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the necessary permit for all the
series of "Ang Iglesia ni Cristo" program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other existing
religions in showing "Ang Iglesia ni Cristo" program.
SO ORDERED.
Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the dispositive portion
of the Decision, and (b) for the Board to be perpetually enjoined from requiring petitioner to submit for review the
tapes of its program. The respondent Board opposed the motion. 12 On March 7, 1993, the trial court granted
petitioner's Motion for Reconsideration. It ordered:13
xxx xxx xxx
WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Court's Order
dated December 15, 1993, directing petitioner to refrain from offending and attacking other existing
religions in showing "Ang Iglesia ni Cristo" program is hereby deleted and set aside. Respondents are
further prohibited from requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its
religious program "Ang Iglesia ni Cristo."
Respondent Board appealed to the Court of Appeals after its motion for reconsideration was denied. 14
On March 5, 1995, the respondent Court of Appeals15 reversed the trial court. It ruled that: (1) the respondent board
has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and (2) the respondent Board did not act
with grave abuse of discretion when it denied permit for the exhibition on TV of the three series of "Ang Iglesia ni
Cristo" on the ground that the materials constitute an attack against another religion. It also found the series "indecent,
contrary to law and contrary to good customs.
In this petition for review on certiorari under Rule 45, petitioner raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE "ANG IGLESIA NI CRISTO" PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS
A FORM OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING
THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE "ANG IGLESIA NI CRISTO"
PROGRAM IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME
CASE THAT IT POSES A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE "ANG IGLESIA NI CRISTO," A PURELY RELIGIOUS PROGRAM IS INDECENT AND
CONTRARY TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review petitioner's
TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power, whether it gravely abused its
discretion when it prohibited the airing of petitioner's religious program, series Nos. 115, 119 and 121, for the reason
that they constitute an attack against other religions and that they are indecent, contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section 3 pertinently
provides:
Sec. 3 Powers and Functions. -- The BOARD shall have the following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical distribution for television broadcast or for
general viewing, imported or produced in the Philippines and in the latter case, whether they be for
local viewing or for export.
 c) To approve, delete objectionable portion from and/or prohibit the importation, exportation,
production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion
pictures, television programs and publicity materials, subject of the preceding paragraph, which, in
the judgment of the BOARD applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines 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 and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are subjudice in nature (emphasis ours).
The law gives the Board the power to screen, review and examine all "television programs." By the clear
terms of the law, the Board has the power to "approve, delete . . . and/or prohibit the . . . exhibition and/or
television broadcast of . . . television programs . . ." The law also directs the Board to apply "contemporary
Filipino cultural values as standard" to determine those which are objectionable for being "immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime."
Petitioner contends that the term "television program" should not include religious programs like its program "Ang
Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5, Article III of the Constitution which
guarantees that "no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall
forever be allowed."
We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an uncharted sea.
Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present.
We 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." 16 We have also laboriously defined in
our jurisprudence the intersecting umbras and penumbras of the right to religious profession and worship. To quote the
summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: 17
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and
freedom to act on one's beliefs. The first is absolute as long as the belief is confined within the realm
of thought. The second is subject to regulation where the belief is translated into external acts that
affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may
indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or
reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence;
recognize or deny the immortality of his soul -- in fact, cherish any religious conviction as he and he
alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the
majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He
 may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men may
believe what they cannot prove." Every one has a right to his beliefs and he may not be called to
account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his
freedom to do so becomes subject to the authority of the State. As great as this liberty may be,
religious freedom, like all the other rights guaranteed in the Constitution, can be enjoyed only with a
proper regard for the rights of others. It is error to think that the mere invocation of religious freedom
will stalemate the State and render it impotent in protecting the general welfare. The inherent police
power can be exercised to prevent religious practices inimical to society. And this is true even if such
practices are pursued out of sincere religious conviction and not merely for the purpose of evading
the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma.
Accordingly, while one has lull freedom to believe in Satan, he may not offer the object of his piety a
human sacrifice, as this would be murder. Those who literally interpret the Biblical 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 taxes on the ground that it would be against his
religious tenets to recognize any authority except that of God alone. An atheist cannot express in his
disbelief in act of derision that wound the feelings of the faithful. The police power can validly
asserted against the Indian practice of the suttee, born of deep religious conviction, that calls on the
widow to immolate herself at the funeral pile of her husband.
We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent Board. Its
public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium
that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can
be regulated by the State when it will bring about the clear and present danger of some substantive evil which the
State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history
counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country
today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable
religious differences. Our country is still not safe from the recurrence of this stultifying strife considering our warring
religious beliefs and the fanaticism with which some of us cling and claw to these beliefs. Even now, we have yet to
settle the near century old strife in Mindanao, the roots of which have been nourished by the mistrust and
misunderstanding between our Christian and Muslim brothers and sisters. The bewildering rise of weird religious cults
espousing violence as an article of faith also proves the wisdom of our rule rejecting a strict let alone policy on the
exercise of religion. For sure, we shall continue to subject any act pinching the space for the free exercise of religion
to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion
divides and its exercise destroys, the State should not stand still.
It is also petitioner's submission that the respondent appellate court gravely erred when it affirmed the ruling of the
respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128. The records show that the respondent
Board disallowed the program series for "attacking" other religions. Thus, Exhibits "A," "A-1," (respondent Board's
Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for ". . . criticizing different religions,
based on their own interpretation of the Bible." They suggested that the program should only explain petitioner's ". . .
own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was x-rated because
"the Iglesia ni Cristo insists on the literal translation of the bible and says that our Catholic veneration of the Virgin
Mary is not to be condoned because nowhere it is found in the bible that we should do so. This is intolerance . . ."
Exhibit "C" shows that Series No. 121 was x-rated ". . . for reasons of the attacks, 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
. . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it ". . . outrages Catholic
and Protestant's beliefs." On second review, it was x-rated because of its "unbalanced interpretations of some parts of
the bible."18 In sum, the respondent Board x-rated petitioner's TV program series Nos. 115, 119, 121 and 128 because
of petitioner's controversial biblical interpretations and its "attacks" against contrary religious beliefs. The respondent
appellate court agreed and even held that the said "attacks" are indecent, contrary to law and good customs.
We 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. Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be
greeted with furrowed brows.19 It is the burden of the respondent Board to overthrow this presumption. If it fails to
discharge this burden, its act of censorship will be struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking" either religions,
especially the Catholic church. An examination of the evidence, especially Exhibits "A," "A-1," "B," "C," and "D"
will show that the so-called "attacks" 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. Yet they
were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from
public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of speech and
interferes with its right to free exercise of religion. It misappreciates the essence of freedom to differ as delineated in
the benchmark case of Cantwell v. Connecticut, so viz.: 20
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been,
or are prominent in church or state or even to false statements. But the people of this nation have
ordained in the light of history that inspite of the probability of excesses 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 Board may disagree with the criticisms of other religions by petitioner but that gives it no
excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not
the task of the State to favor any religion by protecting it against an attack 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. Vis-a-
vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable
stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it
attacks other religions, even if said religion happens to be the most numerous church in our country. In 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 bedrock of freedom of religion is freedom of thought and
it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite
speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating the religious
program of petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it is not among the grounds to
justify an order prohibiting the broadcast of petitioner's television program. The ground "attack against another
religion" was merely added by the respondent Board in its Rules. 21 This rule is void for it runs smack against the
hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they seek to
enforce.
It is opined that the respondent board can still utilize" attack against any religion" as a ground allegedly ". . . because
section 3 (c) of PD No. 1986 prohibits the showing of motion pictures, television programs and publicity materials
which are contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits "shows
which offend any race or religion." We respectfully disagree for it is plain that the word "attack" is not synonymous
with the word "offend." Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any religion. It cannot be utilized to justifyprior censorship of
speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included "attack against any religion" as a
ground for censorship. The ground was not, however, carried over by PD 1986. Its deletion is a decree to disuse it.
There can be no other intent. Indeed, even the Executive Department espouses this view.
 Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the Senate, Neptali
Gonzales explained:
xxx xxx xxx
However, the question whether the BRMPT (now MTRCB) may preview and censor the subject
television program of INC should be viewed in the light of the provision of Section 3, paragraph (c)
of PD 1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No.
876-A, which prescribes the standards of censorship, to wit: "immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines or its people or with
dangerous tendency to encourage the commission of violence, or of a wrong" as determined by the
Board, "applying contemporary Filipino cultural values as standard." As stated, the intention of the
Board to subject the INC's television program to "previewing and censorship is prompted by the fact
that its religious program makes mention of beliefs and practices of other religion." On the face of the
law itself, there can conceivably be no basis for censorship of said program by the Board as much as
the alleged reason cited by the Board does not appear to he within the contemplation of the standards
of censorship set by law. (Emphasis supplied).
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule.
In American Bible Society v. City of Manila, 22 this Court held: "The constitutional guaranty of free exercise and
enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any
restraint of such right can be justified like other restraints on freedom of expression on the ground that there is aclear
and present danger of any substantive evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope
Workers Union, 23 we further ruled that ". . . it is only where it is unavoidably necessary to prevent animmediate and
grave danger to the security and welfare of the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary to avoid the danger."
The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible
attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken
the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule to the case at bar. In the United
States, it is true that the clear and present danger test has undergone permutations. It was Mr. Justice Holmes who
formulated the test in Schenck v. US,24 as follows: ". . . the question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent." Admittedly, the test was originally designed to determine the
latitude which should be given to speech that espouses anti-government action. Bannered by Justices Holmes and
Brandeis, the test attained its full flowering in the decade of the forties, when its umbrella was used to protect
speech other than subversive speech.25 Thus, for instance, the test was applied to annul a total ban on labor
picketing. 26 The use of the test took a downswing in the 1950's when the US Supreme Court decidedDennis v. United
States involving communist conspiracy. 27 In Dennis, the components of the test were altered as the High Court
adopted Judge Learned Hand's formulation that ". . . in each case [courts] must ask whether the gravity of the 'evil,'
discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." The
imminence requirement of the test was thus diminished and to that extent, the protection of the rule was weakened. In
1969, however, the strength of the test was reinstated in Brandenburg v. Ohio,28 when the High Court restored in the
test the imminence requirement, and even added an intent requirement which according to a noted commentator
ensured that only speech directed at inciting lawlessness could be punished.29 Presentlyin the United States, the clear
and present danger test is not applied to protect low value speeches such as obscene speech, commercial speech and
defamation. Be that as it may, the test is still applied to four types of speech: speech that advocates dangerous ideas,
speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a
fair trial. 30 Hence, even following the drift of American jurisprudence, there is reason to apply the clear and present
danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and disturb tenribly.
It 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 overlooks the fact that the case at bar involves videotapes that are pre-taped and
hence, their speech content is known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can determine whether its sulphur will bring
about the substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of the question as to whether or not such
vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is
a judicial function which cannot be arrogated by an administrative body such as a Board of Censors." He submits that
a "system of prior restraint may only be validly administered by judges and not left to administrative agencies. "The
same submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its seedbed was laid down
by Mr. Justice Brennan in his concurring opinion in the 1962 case of Manual Enterprise v. Day 31 By 1965, the US
Supreme Court in Freedman v. Maryland32 was ready to hold that "the teaching of cases is that, becauseonly a judicial
determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression only a procedure
requiring a judicial determination suffices to impose a valid final restraint." 33
While 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 quasi-judicial power to preview and classify TV programs and enforce its decisionsubject to
review by our courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz, 34 viz.:
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. Persons posses no absolute right to put into the mail anything they please,
regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise
of executive power, is extremely delicate in nature and can only be justified where the statute is
unequivocably applicable to the supposed objectionable publication. In excluding any publication for
the mails, the object 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 question. In order for there to be due process of law, the action of the Director of Posts must be
subject to revision by the courts in case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727;
Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916]. 23 -
Fed., 773)
As has been said, the performance of the duty of determining whether a publication contains printed
matter of a libelous character rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every 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 United States Supreme Court and pertaining
to the United States Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904],
194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246
Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine
and relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the proposition whether or not courts aloneare
competent to decide whether speech is constitutionally protected. 35 The issue involves highly arguable policy
considerations and can be better addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it
sustained the jurisdiction of the respondent MTRCB to review petitioner's TV program entitled "Ang Iglesia ni
Cristo," and is reversed and set aside insofar as it sustained the action of the respondent MTRCB x-rating petitioner's
TV Program Series Nos. 115, 119, and 121. No costs.
SO ORDERED.
Regalado, Davide, Jr., Romero and Francisco, JJ., concur.
Narvasa, C.J., concurs in the result.

Separate Opinions

PANGANIBAN, J., concurring:

I think the basic issues in this case are:
A. What is the statutory extent and the constitutional limitation of the powers of the Movies and Television Review
and Classification Board (MTRCB)? More specifically, does the MTRCB have the power to prohibit/ censor
television shows?
B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent Board exercise its
powers correctly and properly?
The first question deals with the general legal concepts and principles underlying the functions and prerogatives of the
MTRCB while the second calls for a juridical evaluation of the specific act of the Board in classifying as "X" (or not
for public viewing) specific pre-taped or canned programs, identified as Series 115, 119, 121 and 128, for the reason
that they allegedly constituted an "attack against another religion." The first involves doctrine; the second, application.
A. EXTENT AND LIMIT OF
MTRCB'S POWERS
The statutory powers of the MTRCB are set forth in Sec. 3 of P.D.
1986.1
In implementing P.D. 1986. the MTRCB issued its own Rules and Regulations. At issue in this case is Section 42 of
such Rules.
On the other hand, these statutory powers and internally generated regulations are limited by the Bill of Rights. Art.
III of the 1987 Constitution, particularly the rights to free speech and religion.
Mr. Justice Mendoza connects the above constitutional rights with the present controversy by saying that "expression .
. . by means of television broadcast is included in the free speech and free press guarantee of the Constitution" and by
Mr. Justice Kapunan by writing that this "case uniquely interphases questions of religious expression and censorship
laws in the context of the constitution's guarantees of freedom of religion and of speech and expression."
Here before us therefore is a classic constitutional law case wherein the inherent power of the state to safeguard the
peace, well-being and general welfare of the people collide and clash with the constitutional rights of individuals and
religious institutions to evangelize, preach, promote, teach, and even proselytize.
Religious Freedom -- A Cherished Right
FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a preferred status by the framers of
our fundamental laws, past and present." Religious freedom is absolute when it is confined within the realm of
thought to a private, personal relationship between a man's conscience and his God, but it is subject to regulation
when religious belief is transformed into external acts that affect or afflict others. The mere invocation of religious
freedom will not stalemate the State and ipso facto render it incompetent in preserving the rights of others and in
protecting the general welfare.
MTRCB's Power to Review and to Censor is Valid
SECOND, I believe that as an agency of the State created to promote the general welfare, the MTRCB under P.D.
1986 has the basic initiatory authority and power to -
"approve or disapprove,
delete objectionable portion from
 and/or prohibit
the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television
broadcast" of pre-taped or canned (as contra-distinguished from "live") video-audio/film/television programs
and publicity materials. I regret I cannot go along with Mr. Justice Mendoza's avante garde thesis that Section
3-c of P.D. 1986, from where the above-quoted words were taken, is "upon its face and as applied,
unconstitutional." I note the extensive materials, particularly from American cases, buttressing his cogent
stand, but, after reflection, prayer and discernment. I am thoroughly convinced that the situation in our
country, particularly the totality of our cultural and religious milieu is far different from that in America.
Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials but not to religious
programs, particularly those of INC, which it claims are neither "immoral" nor "indecent". This position presents more
problems than solutions. For who will determine whether a given canned material is religious or not, and therefore
whether it can be publicly exhibited or not without its passing through the Board? I would prefer that the State, which
is constitutionally mandated to be neutral, continue to exercise the power to make such determination, rather than
leave it up to the producer, maker or exhibitor of such material, who/which, because of vested interests would, in the
normal course, be understandably biased in his/its own favor. I feel less discomfort with the idea of maintaining the
censors' quasi-judicial authority to review such film materials, subject to appeal to the proper courts by aggrieved
parties, than with the prospect and consequences of doing away with such power altogether. I agree with Mr. Justice
Vitug in finding "it more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be
contrary to decency, morality, good custom or the law until, at least, the courts are given an opportunity to pass upon
the matter . . ." A contrary ruling would most regrettably remove meaningful and necessary safeguards against a
veritable floodtide of prurient, violence-prone and values-eroding television shows and programs.
In Gonzales vs. Kalaw Katigbak4 and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,5 this Court early on
acknowledged the uniquely pervasive presence of broadcast and electronic media in the lives of everyone, and the
easy accessibility of television and radio to just about anyone, especially children. Everyone is susceptible to their
influence, even "the indifferent or unwilling who happen to be within reach of a blaring radio or television set."6 And
these audiences have less opportunity to cogitate, analyze and reject the utterances, compared to readers of printed
material.7 It is precisely because the State as parens patriae is "called upon to manifest an attitude of caring for the
welfare of the young"8 that I vote for the retention of the State's power of review and prohibition via the MTRCB.
High-minded idealism in the staunch defense of the much-vaunted freedoms cannot but be admired. Yet, no matter
how devoutly we may wish it, not all the people share the same mindset and views nor, needless to say, the same
viewpoint, i.e., the ivory tower window. Hence, we must prudently anticipate that abuses against the public weal are
likely to be committed where absolute permissiveness is the norm. Would that, with the total absence of censorship or
review, there occur a significant increase in religious, spiritual or morally uplifting prime-time programming! But
realistically and pragmatically speaking, we see mostly the prospect of more explicit sex-oriented advertising,
unadulterated violence and outright pandering to phone-sex addicts and the simply curious. The fact that even the Net
is not free of pornographic slime is no excuse to let down all reasonable barriers against broadcast media offerings of
muck, moral depravity and mayhem. And definitely, there is no good and sensible reason for the State to abdicate its
vital role as parens patriae, in the guise of copying American constitutional precedents, which I respectfully submit,
are inapplicable in our factual context and time.
MTRCB Must Use Constitutional Standard
THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must act prudently. And it
can do so ONLY if it exercizes its powers of review and prohibition according to a standard and/or a limit.
I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck down as an
unconstitutional standard. This is martial law vintage and should be replaced with the more libertarian "clear and
present danger rule" which is eloquently esplained by JJ. Kapunan, Puno and Mendoza (and which explanation I shall
not repeat here).
Having said that, may I respectfully point out however that there is an even more appropriate standard in
thePhilippine context proffered by the law itself, and that is "contemporary Philippine cultural values." This standard
under the law, should be used in determining whether a film or video program is "(a) immoral, (b) indecent, (c)
contrary to law and/or good custom, and (d) injurious to the prestige of the Republic of the Philippines or its people."
On the other hand, when the question is whether the material being reviewed "encourages the commission of violence
or of a wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger" principle should be
applied as the standard in place of the "dangerous tendency" rule.
Just a word edgewise about cultural values. Our cultural ideals and core values of galang, pagbabahala, pananagutan,
balikatan, malasakit, asal, halaga, diwa, damdamin, dangal, kapwa, pakikitungo, hiya, delikadesa, awa, tiwala,
maka-Diyos, maka-tao, maka-buhay and so forth, define us as a people, as Filipinos. We are who and what we are
because of these values and ideals. They delimit the areas of individual and social behavior and conduct deemed
acceptable or tolerable, and ultimately they determine the way we as individuals uniquely conduct our relationships
and express ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to religious thought
and expression will permit an "overarching" into a constitutionally protected area, and provides the MTRCB with a
veiled excuse for clamping down against unorthodox religious thought and expression. But such fear is highly
speculative and totally unsupported by empirical evidence. I would like to add that where a mode of religious
expression runs counter to such core values, serious questions have to be raised about the ultimate redeeming worth of
such expression. An example is in order. Not too long ago, the so-called "Children of God" blew into town, and, under
the guise of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply sit on our hands if
these "Children" were to telecast their religious programs for OUR children to watch, or conduct seminars over the
airwaves on the hows of free sex . . . Another example: satanic cults involve blood sacrifices . . . In brief, I am in
agreement with the ponencia that the practice of religion cannot be totally abandoned to the market place and
governed by the policy of laissez faire.
Validity of MTRCB's Internal Rule
FOURTH. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to prohibit the
showing of materials "which clearly constitute an attack against any race, creed or religion . . .", I agree with Mr.
Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be read together with other existing laws such as,
for instance, the provisions of the Revised Penal Code, particularly Article 201, which prohibit the exhibition of
shows that 'offend another race or religion.'" Indeed, where it can be shown that there is a clear and present danger that
a religious program could agitate or spark a religious strife of such extent and magnitude as to be injurious to the
general welfare, the Board may "X-rate" it or delete such portions as may reasonably be necessary. The debilitating
armed conflicts in Bosnia, Northern Ireland and in some Middle East countries due to exacerbated religious
antagonisms should be enough lesson for all of us. Religious wars can be more ravaging and damaging than ordinary
crimes. If it is legal and in fact praiseworthy to prevent the commission of, say, the felony of murder in the name of
public welfare why should the prevention of a crime punishable by Art. 201 of the Penal Code be any less legal and
less praiseworthy.
I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans shows which "attack" a
religion, whereas Art. 201 merely penalize; those who exhibit programs which "offend" such religion. Subject to
changing the word "attack" with the more accurate "offend". I believe Section 4 of the Rules can stand.
In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or interpretation) of the
words "dangerous tendency" with the phrase (or as meaning) "clear and present danger" in Sec. 3-c: and (2) that Sec.
4 of the Board's Rules would be likewise valid, providcd the words "constitute an attack" are changed with "offend"
B. WAS THE BANNING OF THE IGLESIA
PROGRAMS PROPER?
We now come to the immediate question: Did the respondent Board correctly apply Section 3 of P.D. 1986 in
prohibiting the public telecasting of the Iglesia program. In short, did the INC series "offend" a religion? Juridically
stated, did the respondent MTRCB use "contemporary Filipino cultural values" in determining that said series
offended another religion such as to constitute a clear and present danger of a religions strife which is injurious to
public welfare? [Note: I advisedly used both the "values" and "clear and present" standards in framing the question
because the INC program was apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a
"crime".]
Unfortunately, we cannot answer this question directly because the tape in question was never submitted to the Court
for viewing. Neither was there a detailed description of its objectionable contents in the assailed Decision of the Court
of Appeals or Regional Trial Court. Nor is there extant a detailed justification prepared by respondent Board on why it
banned the program - other than its bare conclusion that the material constituted an attack against the Catholic and
Protestant religions.
In no wise can the "remarks" in the voting slips presented before the trial court be considered sufficient justification
for banning the showing of any material.
In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize a suppression of a
species of the freedom of speech on the say-so of anyone - not even of the MRTCB. Paraphrasing People
v.Fernando,9 the disputable presumption (which is of statutory origin) that official duties have been regularly
performed must yield to the constitutionally enshrined freedoms of expression and of religion. If courts are required to
state the factual and legal bases of their conclusions and judicial dispositions, with more reason mustquasi-
judicial officers such as censors, especially when they curtail a fundamental right which is "entitled to the highest
priority and amplest protection."
FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify its conclusion
thru the use of the proper standards that the tapes in question offended another religion, I vote to GRANT the petition
insofar as it prays for the showing of said programs. However, I vote to DENY the petition insofar as allowing the
INC to show its pretaped programs without first submitting them forreview by the MTRCB.

PADILLA, J., concurring and dissenting:

I concur with the majority opinion insofar as it removes the ban against the showing of petitioner's TV Program Series
Nos. 115, 119 and 121. However, I disagree with that part of the majority opinion which upholds the power of
respondent Board to subject to prior restraint petitioner's religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there can be no prior restraints on
the exercise of free speech expression or religion unless such exercise poses a clear and present danger of a
substantive evil which the State has the right and even the duty to prevent. The ban against such prior restraints will
result, as it has resulted in the past, in occasional abuses of free speech and expression but it is immeasurably
preferable to experience such occasional abuses of speech and expression than to arm a governmental administrative
agency with the authority to censor speech and expression in accordance with legislativev standards which albeit
apparently laudable in their nature, can very well be bent or stretched by such agency to convenient latitudes as to
frustrate and eviscerate the precious freedoms of speech and expression.
Besides, any person who may feel aggrieved by the exercise of free speech, expression and religion, is afforded, under
our system, the remedy of redress in the courts of law, justice and equity.
In short, it is far better for the individual to live in a climate of free speech and free expression, devoid of prior
restraints, even at the risk of occasional excesses of such freedoms than to exist in an ambiance of censorship which is
always a step closer to autocracy and dictatorship.

MENDOZA, J., concurring:

I concur in the decision to allow the showing of certain video tapes of petitioner's program, "Ang Iglesia Ni Cristo,"
and for this purpose to reverse the contrary ruling of the Court of Appeals. I am constrained to file this separate
opinion, however, because, while the majority opinion invokes general principles of free speech and religion to which
I subscribe, it regrettably fails to apply these principles to the law (P.D. No. 1986 and its implementing rules) under
which the Board has acted.
My position will be spelled out presently but, in brief, it is this: Censorship may be allowed only in anarrow class of
cases involving pornography, excessive violence, and danger to national security. Even in these cases, only courts can
prohibit the showing of a film or the broadcast of a program. In all other cases, the only remedy against speech which
creates a clear and present danger to public interests is through subsequent punishment. Considering the potentiality
for harm which motion pictures and TV programs may have especially on the young, all materials may validly be
required to be submitted for review before they may be shown or broadcast. However, the final determination of the
character of the materials cannot be left to an administrative agency. That judicial review of administrative action is
available does not obviate the constitutional objection to censorship. For these reasons, I would hold §3(b) of P.D. No.
1986, which gives to the Board limited time for review, to be valid, while finding §3(c), under which the Board acted
in this case in censoring petitioner's materials, to be, on its face and as applied, unconstitutional.
I. "At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship or punishment. There is to be . . . no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages,
or contempt proceedings, unless there be a clear and present danger of substantive evil that Congress has a right to
prevent."1 "Because of the preferred character of the constitutional rights of freedom of speech and expression, a
weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms."2
Authoritative interpretations of the free speech clause consider as invalid two types of prior restraints, namely, those
which are imposed prior to the dissemination of any matter and those imposed prior to an adequate determination that
the expression is not constitutionally protected. As the Wisconsin Supreme Court put the matter, "[A] prohibited "prior
restraint" is not limited to the suppression of a thing before it is released to the public. Rather, an invalid prior restraint
is an infringement upon the constitutional right to disseminate matters that are ordinarily protected by the first
amendment without there first being a judicial determination that the material does not qualify for first amendment
protection."3
Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions Pty. Ltd. v. Capulong,4 we
held that an injunction stopping the production of a documentary film was an invalid prior restraint on freedom of
speech and of expression. In Mutuc v. COMELEC,5 we struck down, also as an invalid prior restraint, a COMELEC
rule prohibiting the use in political campaigns of taped jingles blared through loudspeakers which were mounted on
mobile units. "[T]he constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but
not perpetuating what is uttered by him through tape or other mechanical contrivances."6
On the other hand, the fact that the material may have seen print or been taped, as in the case of the TV series in
question, cannot justify restriction on its circulation in the absence of a judicial determination that the material does
not constitute protected expression. In Sotto v. Ruiz, we denied finality to the authority of the Director of Posts to
exclude newspapers and other publications from the mails "since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due process of law, the action of the Director of Posts must be
subject to revision by the courts in case he has abused his discretion or exceeded authority."8
II. P.D. No . 1986, §3(b) requires motion pictures, television programs and publicity materials to be submitted to the
Board for review, while §7 makes it unlawful for any person or entity to exhibit or cause to be exhibited in any
moviehouse, theater or public place or by television any motion picture, television program or publicity material
unless it has been approved by the Board. Anyone who violates the prohibition is liable to prosecution and, in case of
conviction, to punishment by imprisonment ranging from 3 months and 1 day to 1 year, plus a fine of not less than
P50,000.00 but not more than P100,000.00. In addition, the moviehouse, theater or television station violating the
provision faces a revocation of its license.9
In Burstyn v. Wilson,10 it was held that expression by means of motion pictures -- and, it may be added, by means of
television broadcasts - is included in the free speech and free press guarantee of the Constitution. This ruling is now
part our constitutional law, which has assimilated into the constitutional guarantee not only motion pictures but also
radio and television shows because of the importance of movie, radio and television both as a vehicle of
communication and as a medium of expression.11
Does §3(b) impermissibly impose a prior restraint because of its requirement that films and TV programs must be
submitted to the Board for review before they can be shown or broadcast? In my view it does not. The Burstyncase, in
declaring motion pictures to be protected under the free expression clause, was careful to add: "It does not follow that
the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places . . .
Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular
method of expression. Each method tends to present its own peculiar problems."12 With reference to television, this
Court is on record that "a less liberal approach calls for observance. This is so because unlike motion pictures where
patrons have to pay their way, television reaches every home where there is a [TV]
set. Children then will likely be among the avid viewers of programs therein shown. . . . [T]he State as parens
patriae is called upon to manifest an attitude of caring for the welfare of the young."13
While newspapers may not be required to submit manuscripts for review as a condition for their publication, except
during wartime, such a requirement is justified when applied to motion pictures or television programs (other than
newsreels and commentaries) because of unique considerations involved in their operation. "First, broadcast media
have established a uniquely pervasive presence in the livesof all citizens. Material presented over the airwaves
confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to
children. Bookstores and motion picture theaters may be prohibited from making certain material available to
children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly
tuning in and out."14 The State may thus constitutionally require the advance submission of all films and TV programs
as a means
of enabling it effectively to bar the showing of unprotected films and TV programs.15
For these reasons, I hold §3(b) to be a valid exercise of the State's power to protect legitimate public interests. The
purpose of this restraint - temporary in character -- is to allow the Board time to screen materials and to seek an
injunction from the courts against those which it believes to be harmful.
III. I reach a different conclusion, however, with respect to §3(c). This provision authorizes the Board to prohibit,
among other things, the exhibition or broadcast of motion pictures, television programs and publicity materials which,
in its opinion, are "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or [which have] a dangerous tendency to encourage the commission of violence or of
a wrong or crime," such as the following:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or
otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people in their government and/or
the duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether
living or dead; and
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to
matters which are sub judice in nature.
Under this authority, the Board can determine what can be shown or broadcast and what cannot. It is not true, as the
Board claims, that under P.D. No. 1986 its power is limited to the classification of motion pictures and TV programs.
The power to classify includes the power to censor. The Board can x-rate films and TV programs and thus ban their
public exhibition or broadcast. And once it declares that a motion picture or television program is, for example,
indecent or contrary to law, as in the case of the INC program in question, its declaration becomes the law. Unless the
producer or exhibitor is willing to go to court, shouldering not only the burden of showing that his movie or television
program is constitutionally protected but also the cost of litigation, the ban stays.16 This is censorship in its baldest
form. This is contrary to the fundamental tenet of our law that until and unless speech is found by the courts to be
unprotected its expression must be allowed.
In an effort to save this provision from constitutional attack, it is alleged that the TV program in question was
disallowed pursuant to the rules of the Board which prohibit the showing of motion pictures or TV programs
containing "malicious attack[s] against any race, creed or religion." It is contended that this rule impermissibly
broadens the prohibition in §3(c), because this ground ("malicious attack[s] against any race, creed or religion") is not
among those provided therein.
However, §3(c) gives the Board authority to stop the showing of motion pictures, television programs and publicity
materials which are "contrary to law," and Art. 201(2) (b) (3) of the Revised Penal Code makes it a crime for anyone
to exhibit "shows which offend any race or religion." It is true that Art. 201 (2) (b) (3) refers to subsequent
punishment, whereas we are dealing here with prior restraint. However, by authorizing the censorship of materials
which in the opinion of the Board are "contrary to law," §3(c) makes what is only a ground for subsequent punishment
also a ground for prior restraint on expression. It is §3(c) of P.D. No. 1986, and not only the rules implementing it,
which is unconstitutional.17
While I think the Board may be granted the power to preview materials, it is only for the purpose of enabling the
Board to decide whether to seek their prohibition by the court in the interest of safeguarding morality, good order and
public safety, considering the pervasive influence of broadcast media compared to that of the print media. But concern
with possible deleterious effects of movies and television shows cannot and should not be allowed to overshadow the
equally important concern for freedom of expression and blind us to the danger of leaving the ultimate determination
of what expression is protected and what is not to a board of censors. The protection of the youth should be in the first
place the concern of parents, schools and other institutions. I do not think that society is so morally impoverished that
we have to draw on a group of censors for ultimate moral lesson and leading.
If we have to call on the assistance of any agency at all, it must be the courts.18 There are many reasons why a system
of prior restraint (in those cases where it may validly be imposed) may only be administered by judges. First is that
the censor's bias is to censor. Second is that "only a determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression."19 As has been observed, "Central to the first amendment due process is the
notion that a judicial rather than an administrative determination of the character of the speech is necessary. . . .
[C]ourts alone are competent to decide whether speech is constitutionally protected."20 Third, the members of the
Board do not have the security of tenure and of fiscal autonomy necessary to secure their independence.
Indeed, I cannot understand why, after ruling that the valuation of property in eminent domain is essentially a judicial
function which cannot be vested in administrative agencies,21 this Court should be willing to leave the valuation of
that priceless commodity - expression, whether by means of motion picture or television - to administrative agencies
with only occasional review by the courts. The trend may be toward greater delegation of judicial authority to
administrative agencies in matters requiring technical knowledge and as a means of relieving courts of cases which
such agencies can very well attend to. 22 There is no justification, however, for such delegation in the area of our
essential freedoms, particularly freedom of expression, where "only a judicial determination in an adversary
proceeding [can] ensure the necessary sensitivity to freedom of expression."23
We have witnessed such distinct possibility in the past to need any more lesson in the future to make us realize the
danger of leaving freedom of expression and religion - the essential freedom of the mind - in the care of an
administrative agency.
To the extent therefore that P.D. No. 1986, §3(c) vests in the Board the final authority to determine whether expression
by motion picture or television is constitutionally protected, I find it unconstitutional.
IV. The majority limit themselves to a determination of the correctness of the Board's finding that the video tapes in
question contain attacks on the Catholic religion, I find it difficult to pass upon this question because the contents of
the tapes are not in the record of this case.24 The trial court ruled that the tapes contain no attack against any religion
but only a discussion of the doctrines which the Iglesia Ni Cristo believes embody "superior and self evident truth."
On the other hand, the Court of Appeals, in reversing the trial court, found that the tapes "offend by verbal abuse other
religions" and are for that reason "indecent and contrary to good customs" within the meaning of P.D. No, 1986, §3(c).
Neither court, however, had any evidence to support its conclusions, because this case was submitted by the parties
solely on the basis of memoranda. What the majority of this Court call facts (pp. 16-17) are simply the opinions of
members of the Board that the video tapes contain attacks on the Catholic religion.
There are no facts on which to base judgment on this question. Even if there are, the clear and present danger test is
inapplicable. To be sure, in Gonzales v. Kalaw Katigbak this Court said:
[W]here the movies, theatrical productions, radio scripts, television programs, and other such media
of expression are concerned -- included as they are in freedom of expression - censorship, especially
so if an entire production is banned, is allowable only under the clearest proof of a clear and present
danger of a substantive evil to public safety, public morals, public health or any other legitimate
public interest.25
The clear and present danger test has been devised for use in criminal prosecutions for violations of laws punishing
certain types of utterances.26 While the test has been applied to the regulation of the use of streets and
parks27 -- surely a form of prior restraint - its use in such context can be justified on the ground that the content of the
speech is not the issue. But when the regulation concerns not the time, place or manner of speech but its content (i.e.,
it is content-based) the clear and present danger test simply cannot be applied. This is because a determination
whether an utterance has created a clear and present danger to public interests requires a factual record.
The test itself states that the question in every case is "whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has
a right to prevent." 28 However it may have been reformulated in later cases, the test essentially requires that the
causal connection between the speech and the evil apprehended be evident.29 But how can this be shown unless the
speech is first allowed? It is not enough that the tapes have been made and only their broadcast banned. What about
the audience reaction to the tapes? Even if we know what the tapes in this case contain, we cannot determine whether
their public broadcast would create a clear and present danger to public interests. The censorship board, trying to
determine whether to issue a permit, must necessarily speculate on impact which the words will have since the context
in which they will be uttered - the audience, the occasion, and the place - is totally lacking in the record. It is then
forced to apply a lesser standard of proof in deciding whether to impose a restraint on speech.
The majority claim that there is no need for a factual record in order to find that the Board in this case exceeded its
powers in disallowing the TV series in question. They argue that "acts of prior restraint are hobbled by the
presumption of invalidity and should be greeted with furrowed brews. It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this heavy burden, its act of censorship will be struck down. . . . In
the case at bar, respondent board did nothing to rebut the presumption." (p. 17)
That, however, is precisely the problem with the censorship law. It in effect places on the producer or exhibitor the
burden of going to court and of showing that his film or program is constitutionally protected. To paraphrase Sotto
v. Ruiz, which the majority cite as authority for sustaining the validity of §3(c), "Every intendment of the law is in
favor of the correctness of [the agency's] action."30 The Board would have this burden of justification if, as I believe it
should, is made to go to court instead and justify the banning of a film or TV program. That is why §3(c) should be
invalidated. One cannot defend the validity of the law and at the same time contend that in any court proceeding for
the review of the Board's decision the burden of justifying the ban should be on the Board.
The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the standard for judging the validity of
prior restraint on political expression is stricter than that for adjudging restraints on materials alleged to be obscene,
but not that the test of clear and present danger is applicable in determining whether or not a permit may be granted.
In Gonzales v. Kalaw Katigbak31 this Court echoed Justice Douglas's plea that "every writer, actor, or producer, no
matter what medium of expression he may use, should be freed from the censor." For indeed the full flowering of
local artistic talents and the development of the national intelligence can take place only in a climate of free
expression. A film producer, faced with the prospect of losing on his investment as a result of the banning of his movie
production, may well find himself compelled to submit to the wishes of the Board or practice self-censorship. The
expression of unpopular opinions, whether religious, political or otherwise is imperilled under such a system.
We have long ago done away with controls on the print media, it is time we did the same with the control on broadcast
media, which for so long operated under restraints,32 leaving the punishment for violations of laws to be dealt with by
subsequent prosecution.
For the foregoing reasons, I vote to declare §3(2) of P.D. No. 1986 unconstitutional and to reverse the decision of the
Court of Appeals, except in so far as it sustains the grant of power to the Board to preview materials for showing or
broadcast, consistent with my view that §3(b) is valid.

MELO, J., concurring and dissenting:

The enjoyment of the freedom of religion is always coupled with the freedom of expression. For the profession of
faith inevitably carries with it as a necessary appendage, the prerogative of propagation. The constitutional guaranty of
free exercise and enjoyment of religious profession and worship thus denotes the right to disseminate religious
information (American Bible Society vs. City of Manila 101 Phil. 386 [1957]). Any prior restriction upon a religious
expression would be a restriction on the right of religion. We recognize the role and the deep influence that religion
plays in our community. No less than the fundamental law of the land acknowledges the elevating influence of
religion by imploring the aid of almighty God to build a just and humane society. Any restriction that is to be placed
upon this right must be applied with greatest caution.
Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established religious organization has been well
with us for almost a century, with several millions of following quite a number of imposing and elegantly constructed
cathedrals and hundreds of chapels spread in many parts of the country, injecting profound influence not only in the
social and political aspect of the community but upon its moral values as well. Respect must be afforded a well-
established church, especially on matters concerning morality and decency lest no concept of morality could ever be
accepted with deference. Such preeminence in the community deserves no less than the confident expectation that it
will act in accordance with its avowed mission of promoting religious guidance and enlightenment. Its religious
programs must be accorded the presumption that the same will instill moral values that would be beneficial to its
adherents and followers, and perhaps to the community in general. The contrary must not be presumed. Its television
programs, therefore, should not be equated with ordinary movies and television shows which MTRCB is bound by the
law to monitor for possible abuse. One must recognize the power of State to protect its citizenry from the danger of
immorality and indecency motivated by the selfish desire of media entrepreneurs to accumulate more wealth, or of
bogus religious groups, for that matter, to mislead and beguile the unlettered and uninformed. But considering all
these circumstances, I see no cogent reason for the application of such power to the present case.
Freedom of religion and expression is the rule and its restriction, the exception. Any prior restriction on the exercise of
the freedom to profess religious faith and the propagation thereof will unduly diminish that religion's authority to
spread what it believes to be the sacred truth. The State can exercise no power to restrict such right until the exercise
thereof traverses the point that will endanger the order of civil society. Thus we have ruled in the case of Ebralinag
vs. The Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to
public safety, public morals, public health or any other legitimate public interest that the state has the
right and duty to prevent.
Correspondingly, the MTRCB has no authority to use as standard, the dangerous tendency rule, which we have long
abandoned and for which reason, the dangerous tendency standard under Subparagraph C, Section 3 of Presidential
Decree No. 1986 has no place in our statute books.
I therefore, vote to grant the petition.

VITUG, J., dissenting:

I agree with those who support the view that religious freedom occupies an exalted position in our hierarchy of rights
and that the freedom to disseminate religious information is a constitutionally-sanctioned prerogative that allows any
legitimate religious denomination a free choice of media in the propagation of its credo. Like any other right,
however, the exercise of religious belief is not without inherent and statutory limitations.
The Board disapproved the exhibition of a series of television programs of petitioner on the ground that they tend to
"offend and constitute an attack against other religions." An opinion has been expressed that the non-inclusion in
Section 3 of P.D. 1986 of an "attack against any religion," as a standard for classification, and so the deletion of the
phrase "offensive to other religions" found in the old censorship law (Executive Order No. 876), should be clear
enough to manifest a legislative intent "to do away with the standard." A reading of Section 3 of P.D. 1986 shows that
the Board is empowered to "screen, review and examine all . . . television programs" and to "approve or disprove,
delete objectionable portion from and/or prohibit the . . . television broadcast of . . . television programs . . . which, in
the judgment of the BOARD (so) applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs . . . ." I believe that the phrase "contrary to law" should
be read together with other existing laws such as, for instance, the provisions of the Revised Penal Code, particularly
Article 201, which prohibits the exhibition of shows that "offend another race or religion." I see in this provision a
good and sound standard. Recent events indicate recurrent violent incidents between and among communities with
diverse religious beliefs and dogma. The danger is past mere apprehension; it has become a virtual reality and now
prevalent in some parts of the world.
In order not to infringe constitutional principles, any restriction by the Board must, of course, be for legitimate and
valid reasons. I certainly do not think that prior censorship should altogether be rejected just because sanctions can
later be imposed. Regulating the exercise of a right is not necessarily an anathema to it; in fact, it can safeguard and
secure that right.
When I particularly ponder on the magnitude of the power of a television set, I find it more prudent to have a
deferment of an exhibition that may be perceived to be contrary to decency, morality, good customs or the law until, at
least, the courts are given an opportunity to pass upon the matter than rely merely on the availability of retribution for
actual injury sustained. A delay is not too high a price to pay for a possible damage to society that may well tum out to
be incalculable and lasting.
In this instance, I vote for the dismissal of the petition.
KAPUNAN, J., concurring and dissenting:
While I concur in the result of the majority's decision reversing that of the Court of Appeals insofar as it set aside the
action of respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119 and 121, with due respect, I
cannot agree with its opinion that respondent Board of Review for Motion pictures and Television (now MTRCB) has
the power to review petitioner's TV program "Ang Iglesia ni Cristo." The religious TV program enjoys the
Constitution's guarantee of freedom of religion,1 and of speech and
expression.,2 and cannot be subject to prior restraint by the Board by virtue of its powers and functions under Section
3 of P.D. 1986 which provides as follows:
Sec. 3. Powers and Functions. -- The BOARD shall have the following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for
general viewing, imported or produced in the Philippines, and in the latter case, whether they be for
local viewing or for export.
c) To approve or disapprove, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of
the motion pictures, television programs and publicity materials subject of the preceding paragraph,
which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent, contrary to law and/or good customs, Injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage
the commission of violence or of a wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence and
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and,
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are subjudice in nature.
Under the aforequoted provisions, the MTRCB, while nominally a classification board, is granted the power not only
to classify, but also to approve or disapprove/prohibit exhibition of film or television broadcasts of motion pictures
and TV programs.
The freedom to disseminate religious information is a right protected by the free exercise clause of the Constitution. It
encompasses a wide range of ideas and takes many forms. In the process of enlightening the adherents or convincing
non-believers of the truth of its beliefs, a religious sect or denomination is allowed the free choice of utilizing various
media, including pulpit or podium, print, television film, and the electronic mail.
The broad latitude of freedom afforded by the free exercise clause is an historic outgrowth of our country's twin
colonial experiences: our forefathers' aversion against the Spanish colonial government's interference with religious
belief and practice and the transplantation of American Constitutional thinking into the mainstream of our political
life, which brought with it the ideas of Protestant dissent and humanistic rationalism dominant in the debates of the
American Constitutional Convention. These two poles conjoined to place the individual conscience beyond the
coercive power of government. Involving as it does the relationship of man to his Creator, respect for the inviolability
of conscience lay at the core of the free exercise clauses in our Constitutions from 1935 to 1987.3
It is, therefore, settled that religious freedom is a fundamental right entitled to the highest priority and amplest
protection among human rights. Because of its exalted position in our hierarchy of civil rights, the realm of religious
belief is generally insulated from state action, and state interference with such belief is allowed only in extreme cases.
Free exercise encompasses all shades of expression of religious belief. It includes the right to preach, proselyte and to
perform other similar functions.4 As oftentimes these aspects of the free exercise clause fall within areas affected by
government regulation, the importance of religious freedom is such that the state must make special provisions to
relieve religious liberty from restrictions imposed by generally legitimate government regulations5Commenting on
religious freedom and other freedoms of conscience, this Court held in Reyes v. Bagatsing6 that:
[O]n the judiciary -- even more so than on the other departments -- rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course dispense with what has been felicitously termed by Justice Holmes
"as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of such rights.7
Even before film and television achieved the power and influence it has gained in the last few decades, the U.S.
Supreme Court, in the case of Burtsyn v. Wilson,8 conceded that movies were a significant medium for the
dissemination of ideas, affecting "public attitudes and behavior in a variety of ways, ranging from the direct espousal
of a political or social doctrine to the subtle shaping of thought which characterizes artistic expression."9The U.S.
Supreme Court emphasized that the significance of motion pictures as an organ of public opinion is not diluted by the
fact that films are "designed to entertain as well as to inform," 10 thus, recognizing that motion pictures fell within the
sphere of constitutionally protected speech and expression. Responding to the question of censorship in the context of
film as protected expression, the U.S. Supreme Court, in the case of Freedman v. Maryland 11 held that:
The administration of a censorship system for motion pictures presents peculiar dangers to
constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts
the initial burden on the exhibitor or distributor. Because the censor's business is to censor, there is an
inherent danger that he may be less responsive than a court part of an independent branch of
government -- to constitutionally protected interests in free expression.12
In American Bible Society v. City of Manila,13 this Court held that any restraint on the right to disseminate religious
information "can only be justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent."14 Affirming the use of this "clear and
present danger" standard in cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee
warned that "[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent."15
Religious freedom is not of course an absolute right. However, given its exalted position in our hierarchy of civil
rights, the essence of all that has been said and written about the subject is that only those interests of the highest order
and those not otherwise served can overbalance claims to free exercise of religion.16 In a highly sensitive
constitutional area, only the gravest situation endangering paramount govemmental interests give occasion for
permissible limitation. And even in such rare cases, government may justify an inroad into religious liberty only by
showing that it is the least restrictive means of achieving the compelling state interest. A facially neutral regulation
apparently evenhandedly applied to all religious sects and denominations would be constitutionally suspect when it
imposes an undue burden on the exercise of religious freedom. "Rules are rules" is not by itself a sufficient
justification for infringing religious liberty.17
It is my submission that the government, under the guise of its regulatory powers in the censorship law (P.D. 1986 and
its corresponding implementing rules and regulations), does not have the power to interfere with the exercise of
religious expression in film or television by requiring the submission of the video tapes of petitioner's religious
program before their public viewing, absent a showing of a compelling state interest that overrides the constitutional
protection of the freedom of expression and worship. Even if government can demonstrate a compelling state interest,
it would only burden such fundamental right like the free exercise of religion by the least intrusive means
possible.18 There is no demonstration here of any sufficient state interest to justify the infringement.
In any case, petitioner's religious programs, which in their very essence and characterization are the exercise of
religious freedom, cannot possibly come under the category of the objectionable matters enumerated in Section 3(c) of
P.D. 1986 or analogous thereto. It is not likely that propagation of religion which has been spoken of as "a profession
of faith that binds and elevates man to his Creator"19 will involve pornography excessive violence or danger to
national security.
Significantly, the enumeration in Section 3(c) does not include the standard "attack against any religion" as among
those considered objectionable and subject to censorship. Respondents justify this omission by stating that any form
of expression "contrary to law" could be subject to regulation because the enumeration is in any case not exclusive,
and that the phrase "contrary to law" should, in the Solicitor General's words in behalf of respondents, be construed
"in relation to Article 201 of the Revised Penal Code which proscribes the exhibition of shows that "offend any race or
religion."20 Respondents moreover argue that the Rules and Regulations of the MTRCB issued pursuant to P.D. 1986
in any case explicitly furnish the standard left out in the enumeration when it provides:
Sec. 4. GOVERNING STANDARD. -- a) The BOARD shall judge the motion pictures and television
programs and publicity materials submitted to it for review, using as standard contemporary Filipino
cultural values to abate what are legally objectionable for being immoral, indecent, contrary to law
and good customs, injurious to the prestige of the Republic of the Philipines or its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime such as but not
limited to:
xxx xxx xxx
vii) Those which clearly constitute an attack against any race, creed, or religion as distinguished from
individual members thereof; . . .
There are several reasons why I cannot agree with respondent Board's contention that it may add the standard "attack
against any religion" among those enumerated by P.D. 1986. While the law's enumeration is concededly not exclusive,
inclusion of other standards should be made in the strict context of the words "immoral, indecent, contrary to law
and/or good customs." Specific standards following a general enumeration cannot go beyond the scope of the latter.
In the first place, the word "indecent" in censorship law has a narrow meaning, confined to obscenity regulation.12 It
cannot be conveniently employed as a catch-all term embracing all forms of expression considered noxious by the
Board. On the other hand, "contrary to law," had particular significance in the old censorship laws because those laws
explicitly included anything "offensive to other religions" among their enumerated standards. In the light of what the
Solicitor General describes as the "transitional" nature of P.D. 1986, the better view would be that the omission of
"attack against any religion" among the enumerated standards was intentional and part of the evolving process of
fashioning a system of strict classification of films and television programs as opposed to censorship. As this phrase
was ubiquitous in the old censorship laws (particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses
the manifest intention of the law-making authority to do away with the standard. This view is supported by the
Executive Branch itself, through the Opinion of then Minister of Justice Neptali Gonzales who stated, when the case
came up before his office for review, that:
[T]he question whether the BRMPT (now MTRCB) may preview and censor the subject television
program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of P.D.
1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A,
which prescribes the standards for censorship, to wit: "immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines or its people, or with
dangerous tendency to encourage the commission of violence, or a wrong" as determined by the
Board, "applying contemporary Filipino cultural values as standard". As stated, the intention of the
Board to subject the INC's television program to "previewing and censorship is prompted by the fact
that its religious program" makes mention of beliefs and practices of other religion". On the face of
the law itself, there can conceivably be no basis for censorship of said program by the Board as much
as the alleged reason cited by the Board does not appear to be within the contemplation of the
standards of censorship set by law.22
Additionally, the phrase "contrary to law" cannot and should not be understood to refer to Article 20123 of the Revised
Penal Code, as respondents mistakenly suggest. Article 201 deals with the subject of subsequent punishment; P.D.
1986 clearly treats with an altogether different matter -- prior restraint and censorship. The two laws stand at opposite
poles in the continuum of regulation and punishment.
Thus, the censor's cut poses a peculiar danger because it altogether skirts time-honored judicial tests and standards
utilized in determining those forms of expression that fall within the area of protected speech or expression, and
because, as between prior restraints and the subsequent sanctions meted after proof of violation of specific penal
statutes, the former prevents the speech or expression from entering the marketplace of ideas.24That is exactly the
effect of the orders assailed by petitioner in the instant case. More significantly, under the specific facts and
circumstances of the case confronting us, what is sought to be kept out of the marketplace of ideas is not only ordinary
speech or expression, two constitutional values which already enjoy primacy among our civil rights, but also religious
speech or expression utilizing the medium of television.
It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard applicable to all religious sects
and denominations. I cannot agree. The "neutrality" standard has been raised in numerous free exercise cases before
the courts, the most recent having been the Flag Salute cases.25 However, a regulation neutral on its face poses free
exercise problems when it creates or has the potential of imposing undue burdens on religion. "Democratic
government acts to reinforce the generally accepted values of a given society and not merely the fundamental ones
which relate to its political structure."26 Facially neutral standards are a facet of prevailing concensus. The old flag
salute cases are testaments to the natural preference for the prevailing political and social morality over the religious
liberty of minorities. The prevalent view tends to impose its idea of what is religious and what is not over and above
the protests of the other religions, sects and denominations.27 Applying "contemporary Filipino standards" and values
(the general test in P.D. 1986) to religious thought and expression allows an "overarching" into a constitutionally
protected area and potentially would simply provide the Board with a veiled excuse for clamping down against
unorthodox religious thought and expression. Measured in terms of the historic purpose of the guarantee, the free
exercise provision in our Constitution not only insulates religion against governmental power, but when taken together
with the Establishment clause, affords protection to religious minorities by preventing the use of that power in
imposing the majority's will.
We are faced with a case of censorship and restraint which, I stated earlier, touches upon one of the most private and
sensitive of domains: the realm of religious freedom, thought and expression. In this domain, sharp differences may
arise such that the tenets of one individual may seem the "rankest error" to his neighbor.28 In the process of persuading
others about the validity of his point of view, the preacher sometimes resorts to exaggeration and vilification.
However, the determination of the question as to whether or not such vilification, exaggeration or fabrication falls
within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated
by an administrative body such as a Board of censors.29 Even if the exercise of the liberties protected by the speech,
expression and religion clauses of our Constitution are regarded as neither absolute nor unlimited, there are
appropriate laws which deal with such excesses. The least restrictive alternative would be to impose subsequent
sanctions for proven violations of laws, rather than inflict prior restraints on religious expression.
Our penal law punishes libel, or acts or speeches offensive to other religions, and awards damages whenever
warranted. In our legal scheme, courts essentially remain the arbiters of the controversies affecting the civil and
political rights of persons. It is our courts which determine whether or not certain forms of speech and expression
have exceeded the bounds of correctness, propriety or decency as to fall outside the area of protected speech. In the
meantime, the liberties protected by the speech and expression and free exercise clauses are so essential to our society
that they should be allowed to flourish unobstructed and unmolested.30
The majority opinion professes fealty to freedom of religion which it openly admits, has been accorded a preferred
status by the framers of our fundamental laws, and affirms that "(D)eeply ensconced in our fundamental
law is its hostility against all prior restraints on speech, including religious speech."31 The majority then adds
pointedly that "acts of prior restraint are hobbled by the presumption of invalidity and should be greeted with
furrowed brews. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this
heavy burden, its acts of censorship will be struck down. It failed in the case at bar."32
And yet, the majority at the same time would grant MTRCB the power to review the TV religious programs because
"with its expertise," it "can determine whether its sulphur will bring about the substantive evil feared by the
law."33The majority thus would uphold the power of the Board as an administrative body with quasi-judicial power to
preview and classify TV programs, citing with favor the 1921 decision of this Court in Sotto vs. Ruiz34 wherein it was
held that:
As has been said, the performance of the duty of determining whether a publication contains printed
matter of a libelous character rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every 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 United States Supreme Court and pertaining
 to the United States Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong.
I share with Justice Mendoza's view that the majority's pronouncement would in effect place on the producer or
exhibitor the burden of going to court and of showing that his film or program is constitutionally protected. This
throws overboard the fundamental tenet that any act that restrains speech is presumed invalid and it is the burden of
the censor to overthrow this presumption. In the context of the present case, if the Board disapproves a TV religious
program or deletes a portion thereof, it is the exhibitor or producer who will go to court to prove that the Board is
wrong and the court will not interfere with the Board's decision unless it can be clearly shown that it is wrong,
following the ruling in Sotto vs. Ruiz.
The majority's ruling, I am afraid, constitutes a threat to constitutionally protected speech and expression and
supplants a judicjal standard for determining constitutionally protected speech and expression with the censor's
standard. The heavy burden on the imposition of prior restraints is shifted away from the state by imposing upon the
exhibitor the obligation of proving that the religious programs fall within the realm of protected expression. This
leaves the exhibitor with only two unwanted options: either 1) he himself deletes the portions which he anticipates the
Board might possibly object to prior to submission to that body and thereby obtains the censor's nod, or 2) submits the
Video tapes in their entirety and risks disapproval or deletion, in which case he may go to court and show that the
Video tapes contain constitutionally protected speech and expression. In the first situation, the message loses its
essence and substance. The second scenario may entail tremendous amount of money, time and effort in a prolonged
litigation. Either case constitutes grievous assault on the freedom of speech and religion.
The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioner's TV programs. In
that case, the Court held that the Acting Director of the Bureau of Posts is vested with authority to determine what
mail matter is obscene, lewd, filthy or libelous, pursuant to Section 1954 of the old Administrative Code which
provides, among others, that no lewd, lascivious, filthy, indecent or libelous character shall be deposited in, or carried
by, the mails of the Philippine Island, or be delivered to its addressee by any officer or employee of the Bureau of
Posts. Petitioner's programs which are televised in the exercise of freedom of worship cannot be placed in the category
of the printed matter proscribed in the old Administrative Code. Freedom of worship is such a precious commodity in
our hierarchy of civil liberties that it cannot be derogated peremptorily by an administrative body or officer who
determines, without judicial safeguards, whether or not to allow the exercise of such freedom.
The rights of free expression and free exercise of religion occupy a unique and special place in our constellation of
civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their
expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and
the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a
form of prior restraint is anathema to a society which places high significance to these values.
WHEREFORE, premises considered, I vote to grant the petition.

Separate Opinions
PANGANIBAN, J., concurring:
I think the basic issues in this case are:
A. What is the statutory extent and the constitutional limitation of the powers of the Movies and Television Review
and Classification Board (MTRCB)? More specifically, does the MTRCB have the power to prohibit/ censor
television shows?
B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent Board exercise its
powers correctly and properly?
The first question deals with the general legal concepts and principles underlying the functions and prerogatives of the
MTRCB while the second calls for a juridical evaluation of the specific act of the Board in classifying as "X" (or not
for public viewing) specific pre-taped or canned programs, identified as Series 115, 119, 121 and 128, for the reason
that they allegedly constituted an "attack against another religion." The first involves doctrine; the second, application.
A. EXTENT AND LIMIT OF
MTRCB'S POWERS
The statutory powers of the MTRCB are set forth in Sec. 3 of P.D.
1986.1
In implementing P.D. 1986. the MTRCB issued its own Rules and Regulations. At issue in this case is Section 4 2 of
such Rules.
On the other hand, these statutory powers and internally generated regulations are limited by the Bill of Rights. Art.
III of the 1987 Constitution, particularly the rights to free speech and religion.
Mr. Justice Mendoza connects the above constitutional rights with the present controversy by saying that "expression .
. . by means of television broadcast is included in the free speech and free press guarantee of the Constitution" and by
Mr. Justice Kapunan by writing that this "case uniquely interphases questions of religious expression and censorship
laws in the context of the constitution's guarantees of freedom of religion and of speech and expression."
Here before us therefore is a classic constitutional law case wherein the inherent power of the state to safeguard the
peace, well-being and general welfare of the people collide and clash with the constitutional rights of individuals and
religious institutions to evangelize, preach, promote, teach, and even proselytize.
Religious Freedom -- A Cherished Right
FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a preferred status by the framers of
our fundamental laws, past and present." Religious freedom is absolute when it is confined within the realm of
thought to a private, personal relationship between a man's conscience and his God, but it is subject to regulation
when religious belief is transformed into external acts that affect or afflict others. The mere invocation of religious
freedom will not stalemate the State and ipso facto render it incompetent in preserving the rights of others and in
protecting the general welfare.
MTRCB's Power to Review and to Censor is Valid
SECOND, I believe that as an agency of the State created to promote the general welfare, the MTRCB under P.D.
1986 has the basic initiatory authority and power to -
"approve or disapprove,
delete objectionable portion from
and/or prohibit
the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television
broadcast" of pre-taped or canned (as contra-distinguished from "live") video-audio/film/television programs
and publicity materials. I regret I cannot go along with Mr. Justice Mendoza's avante garde thesis that Section
3-c of P.D. 1986, from where the above-quoted words were taken, is "upon its face and as applied,
unconstitutional." I note the extensive materials, particularly from American cases, buttressing his cogent
stand, but, after reflection, prayer and discernment. I am thoroughly convinced that the situation in our
country, particularly the totality of our cultural and religious milieu is far different from that in America.
Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials but not to religious
programs, particularly those of INC, which it claims are neither "immoral" nor "indecent". This position presents more
problems than solutions. For who will determine whether a given canned material is religious or not, and therefore
whether it can be publicly exhibited or not without its passing through the Board? I would prefer that the State, which
is constitutionally mandated to be neutral, continue to exercise the power to make such determination, rather than
leave it up to the producer, maker or exhibitor of such material, who/which, because of vested interests would, in the
normal course, be understandably biased in his/its own favor. I feel less discomfort with the idea of maintaining the
censors' quasi-judicial authority to review such film materials, subject to appeal to the proper courts by aggrieved
parties, than with the prospect and consequences of doing away with such power altogether. I agree with Mr. Justice
Vitug in finding "it more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be
contrary to decency, morality, good custom or the law until, at least, the courts are given an opportunity to pass upon
the matter . . ." A contrary ruling would most regrettably remove meaningful and necessary safeguards against a
veritable floodtide of prurient, violence-prone and values-eroding television shows and programs.
In Gonzales vs. Kalaw Katigbak4 and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,5 this Court early on
acknowledged the uniquely pervasive presence of broadcast and electronic media in the lives of everyone, and the
easy accessibility of television and radio to just about anyone, especially children. Everyone is susceptible to their
influence, even "the indifferent or unwilling who happen to be within reach of a blaring radio or television set."6 And
these audiences have less opportunity to cogitate, analyze and reject the utterances, compared to readers of printed
material.7 It is precisely because the State as parens patriae is "called upon to manifest an attitude of caring for the
welfare of the young"8 that I vote for the retention of the State's power of review and prohibition via the MTRCB.
High-minded idealism in the staunch defense of the much-vaunted freedoms cannot but be admired. Yet, no matter
how devoutly we may wish it, not all the people share the same mindset and views nor, needless to say, the same
viewpoint, i.e., the ivory tower window. Hence, we must prudently anticipate that abuses against the public weal are
likely to be committed where absolute permissiveness is the norm. Would that, with the total absence of censorship or
review, there occur a significant increase in religious, spiritual or morally uplifting prime-time programming! But
realistically and pragmatically speaking, we see mostly the prospect of more explicit sex-oriented advertising,
unadulterated violence and outright pandering to phone-sex addicts and the simply curious. The fact that even the Net
is not free of pornographic slime is no excuse to let down all reasonable barriers against broadcast media offerings of
muck, moral depravity and mayhem. And definitely, there is no good and sensible reason for the State to abdicate its
vital role as parens patriae, in the guise of copying American constitutional precedents, which I respectfully submit,
are inapplicable in our factual context and time.
MTRCB Must Use Constitutional Standard
THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must act prudently. And it
can do so ONLY if it exercizes its powers of review and prohibition according to a standard and/or a limit.
I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck down as an
unconstitutional standard. This is martial law vintage and should be replaced with the more libertarian "clear and
present danger rule" which is eloquently esplained by JJ. Kapunan, Puno and Mendoza (and which explanation I shall
not repeat here).
Having said that, may I respectfully point out however that there is an even more appropriate standard in
thePhilippine context proffered by the law itself, and that is "contemporary Philippine cultural values." This standard
under the law, should be used in determining whether a film or video program is "(a) immoral, (b) indecent, (c)
contrary to law and/or good custom, and (d) injurious to the prestige of the Republic of the Philippines or its people."
On the other hand, when the question is whether the material being reviewed "encourages the commission of violence
or of a wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger" principle should be
applied as the standard in place of the "dangerous tendency" rule.
Just a word edgewise about cultural values. Our cultural ideals and core values of galang, pagbabahala, pananagutan,
balikatan, malasakit, asal, halaga, diwa, damdamin, dangal, kapwa, pakikitungo, hiya, delikadesa, awa, tiwala,
maka-Diyos, maka-tao, maka-buhay and so forth, define us as a people, as Filipinos. We are who and what we are
because of these values and ideals. They delimit the areas of individual and social behavior and conduct deemed
acceptable or tolerable, and ultimately they determine the way we as individuals uniquely conduct our relationships
and express ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to religious thought
and expression will permit an "overarching" into a constitutionally protected area, and provides the MTRCB with a
veiled excuse for clamping down against unorthodox religious thought and expression. But such fear is highly
speculative and totally unsupported by empirical evidence. I would like to add that where a mode of religious
expression runs counter to such core values, serious questions have to be raised about the ultimate redeeming worth of
such expression. An example is in order. Not too long ago, the so-called "Children of God" blew into town, and, under
the guise of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply sit on our hands if
these "Children" were to telecast their religious programs for OUR children to watch, or conduct seminars over the
airwaves on the hows of free sex . . . Another example: satanic cults involve blood sacrifices . . . In brief, I am in
agreement with the ponencia that the practice of religion cannot be totally abandoned to the market place and
governed by the policy of laissez faire.
Validity of MTRCB's Internal Rule
FOURTH. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to prohibit the
showing of materials "which clearly constitute an attack against any race, creed or religion . . .", I agree with Mr.
Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be read together with other existing laws such as,
for instance, the provisions of the Revised Penal Code, particularly Article 201, which prohibit the exhibition of
shows that 'offend another race or religion.'" Indeed, where it can be shown that there is a clear and present danger that
a religious program could agitate or spark a religious strife of such extent and magnitude as to be injurious to the
general welfare, the Board may "X-rate" it or delete such portions as may reasonably be necessary. The debilitating
armed conflicts in Bosnia, Northern Ireland and in some Middle East countries due to exacerbated religious
antagonisms should be enough lesson for all of us. Religious wars can be more ravaging and damaging than ordinary
crimes. If it is legal and in fact praiseworthy to prevent the commission of, say, the felony of murder in the name of
public welfare why should the prevention of a crime punishable by Art. 201 of the Penal Code be any less legal and
less praiseworthy.
I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans shows which "attack" a
religion, whereas Art. 201 merely penalize; those who exhibit programs which "offend" such religion. Subject to
changing the word "attack" with the more accurate "offend". I believe Section 4 of the Rules can stand.
In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or interpretation) of the
words "dangerous tendency" with the phrase (or as meaning) "clear and present danger" in Sec. 3-c: and (2) that Sec.
4 of the Board's Rules would be likewise valid, providcd the words "constitute an attack" are changed with "offend"
B. WAS THE BANNING OF THE IGLESIA
PROGRAMS PROPER?
We now come to the immediate question: Did the respondent Board correctly apply Section 3 of P.D. 1986 in
prohibiting the public telecasting of the Iglesia program. In short, did the INC series "offend" a religion? Juridically
stated, did the respondent MTRCB use "contemporary Filipino cultural values" in determining that said series
offended another religion such as to constitute a clear and present danger of a religions strife which is injurious to
public welfare? [Note: I advisedly used both the "values" and "clear and present" standards in framing the question
because the INC program was apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a
"crime".]
Unfortunately, we cannot answer this question directly because the tape in question was never submitted to the Court
for viewing. Neither was there a detailed description of its objectionable contents in the assailed Decision of the Court
of Appeals or Regional Trial Court. Nor is there extant a detailed justification prepared by respondent Board on why it
banned the program - other than its bare conclusion that the material constituted an attack against the Catholic and
Protestant religions.
In no wise can the "remarks" in the voting slips presented before the trial court be considered sufficient justification
for banning the showing of any material.
In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize a suppression of a
species of the freedom of speech on the say-so of anyone - not even of the MRTCB. Paraphrasing People
v.Fernando,9 the disputable presumption (which is of statutory origin) that official duties have been regularly
performed must yield to the constitutionally enshrined freedoms of expression and of religion. If courts are required to
state the factual and legal bases of their conclusions and judicial dispositions, with more reason mustquasi-
judicial officers such as censors, especially when they curtail a fundamental right which is "entitled to the highest
priority and amplest protection."
FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify its conclusion
thru the use of the proper standards that the tapes in question offended another religion, I vote to GRANT the petition
insofar as it prays for the showing of said programs. However, I vote to DENY the petition insofar as allowing the
INC to show its pretaped programs without first submitting them forreview by the MTRCB.

PADILLA, J., concurring and dissenting:

I concur with the majority opinion insofar as it removes the ban against the showing of petitioner's TV Program Series
Nos. 115, 119 and 121. However, I disagree with that part of the majority opinion which upholds the power of
respondent Board to subject to prior restraint petitioner's religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there can be no prior restraints on
the exercise of free speech expression or religion unless such exercise poses a clear and present danger of a
substantive evil which the State has the right and even the duty to prevent. The ban against such prior restraints will
result, as it has resulted in the past, in occasional abuses of free speech and expression but it is immeasurably
preferable to experience such occasional abuses of speech and expression than to arm a governmental administrative
agency with the authority to censor speech and expression in accordance with legislativev standards which albeit
apparently laudable in their nature, can very well be bent or stretched by such agency to convenient latitudes as to
frustrate and eviscerate the precious freedoms of speech and expression.
Besides, any person who may feel aggrieved by the exercise of free speech, expression and religion, is afforded, under
our system, the remedy of redress in the courts of law, justice and equity.
In short, it is far better for the individual to live in a climate of free speech and free expression, devoid of prior
restraints, even at the risk of occasional excesses of such freedoms than to exist in an ambiance of censorship which is
always a step closer to autocracy and dictatorship.

MENDOZA, J., concurring:

I concur in the decision to allow the showing of certain video tapes of petitioner's program, "Ang Iglesia Ni Cristo,"
and for this purpose to reverse the contrary ruling of the Court of Appeals. I am constrained to file this separate
opinion, however, because, while the majority opinion invokes general principles of free speech and religion to which
I subscribe, it regrettably fails to apply these principles to the law (P.D. No. 1986 and its implementing rules) under
which the Board has acted.
My position will be spelled out presently but, in brief, it is this: Censorship may be allowed only in anarrow class of
cases involving pornography, excessive violence, and danger to national security. Even in these cases, only courts can
prohibit the showing of a film or the broadcast of a program. In all other cases, the only remedy against speech which
creates a clear and present danger to public interests is through subsequent punishment. Considering the potentiality
for harm which motion pictures and TV programs may have especially on the young, all materials may validly be
required to be submitted for review before they may be shown or broadcast. However, the final determination of the
character of the materials cannot be left to an administrative agency. That judicial review of administrative action is
available does not obviate the constitutional objection to censorship. For these reasons, I would hold §3(b) of P.D. No.
1986, which gives to the Board limited time for review, to be valid, while finding §3(c), under which the Board acted
in this case in censoring petitioner's materials, to be, on its face and as applied, unconstitutional.
I. "At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship or punishment. There is to be . . . no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages,
or contempt proceedings, unless there be a clear and present danger of substantive evil that Congress has a right to
prevent."1 "Because of the preferred character of the constitutional rights of freedom of speech and expression, a
weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms."2
Authoritative interpretations of the free speech clause consider as invalid two types of prior restraints, namely, those
which are imposed prior to the dissemination of any matter and those imposed prior to an adequate determination that
the expression is not constitutionally protected. As the Wisconsin Supreme Court put the matter, "[A] prohibited "prior
restraint" is not limited to the suppression of a thing before it is released to the public. Rather, an invalid prior restraint
is an infringement upon the constitutional right to disseminate matters that are ordinarily protected by the first
amendment without there first being a judicial determination that the material does not qualify for first amendment
protection."3
Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions Pty. Ltd. v. Capulong,4 we
held that an injunction stopping the production of a documentary film was an invalid prior restraint on freedom of
speech and of expression. In Mutuc v. COMELEC,5 we struck down, also as an invalid prior restraint, a COMELEC
rule prohibiting the use in political campaigns of taped jingles blared through loudspeakers which were mounted on
mobile units. "[T]he constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but
not perpetuating what is uttered by him through tape or other mechanical contrivances."6
On the other hand, the fact that the material may have seen print or been taped, as in the case of the TV series in
question, cannot justify restriction on its circulation in the absence of a judicial determination that the material does
not constitute protected expression. In Sotto v. Ruiz, we denied finality to the authority of the Director of Posts to
exclude newspapers and other publications from the mails "since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due process of law, the action of the Director of Posts must be
subject to revision by the courts in case he has abused his discretion or exceeded authority."8
II. P.D. No . 1986, §3(b) requires motion pictures, television programs and publicity materials to be submitted to the
Board for review, while §7 makes it unlawful for any person or entity to exhibit or cause to be exhibited in any
moviehouse, theater or public place or by television any motion picture, television program or publicity material
unless it has been approved by the Board. Anyone who violates the prohibition is liable to prosecution and, in case of
conviction, to punishment by imprisonment ranging from 3 months and 1 day to 1 year, plus a fine of not less than
P50,000.00 but not more than P100,000.00. In addition, the moviehouse, theater or television station violating the
provision faces a revocation of its license.9
In Burstyn v. Wilson,10 it was held that expression by means of motion pictures -- and, it may be added, by means of
television broadcasts - is included in the free speech and free press guarantee of the Constitution. This ruling is now
part our constitutional law, which has assimilated into the constitutional guarantee not only motion pictures but also
radio and television shows because of the importance of movie, radio and television both as a vehicle of
communication and as a medium of expression.11
Does §3(b) impermissibly impose a prior restraint because of its requirement that films and TV programs must be
submitted to the Board for review before they can be shown or broadcast? In my view it does not. The Burstyncase, in
declaring motion pictures to be protected under the free expression clause, was careful to add: "It does not follow that
the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places . . .
Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular
method of expression. Each method tends to present its own peculiar problems."12 With reference to television, this
Court is on record that "a less liberal approach calls for observance. This is so because unlike motion pictures where
patrons have to pay their way, television reaches every home where there is a [TV]
set. Children then will likely be among the avid viewers of programs therein shown. . . . [T]he State as parens
patriae is called upon to manifest an attitude of caring for the welfare of the young."13
While newspapers may not be required to submit manuscripts for review as a condition for their publication, except
during wartime, such a requirement is justified when applied to motion pictures or television programs (other than
newsreels and commentaries) because of unique considerations involved in their operation. "First, broadcast media
have established a uniquely pervasive presence in the livesof all citizens. Material presented over the airwaves
confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to
children. Bookstores and motion picture theaters may be prohibited from making certain material available to
children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly
tuning in and out."14 The State may thus constitutionally require the advance submission of all films and TV programs
as a means
of enabling it effectively to bar the showing of unprotected films and TV programs.15
For these reasons, I hold §3(b) to be a valid exercise of the State's power to protect legitimate public interests. The
purpose of this restraint - temporary in character -- is to allow the Board time to screen materials and to seek an
injunction from the courts against those which it believes to be harmful.
III. I reach a different conclusion, however, with respect to §3(c). This provision authorizes the Board to prohibit,
among other things, the exhibition or broadcast of motion pictures, television programs and publicity materials which,
in its opinion, are "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or [which have] a dangerous tendency to encourage the commission of violence or of
a wrong or crime," such as the following:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or
otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people in their government and/or
the duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether
living or dead; and
 vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to
matters which are sub judice in nature.
Under this authority, the Board can determine what can be shown or broadcast and what cannot. It is not true, as the
Board claims, that under P.D. No. 1986 its power is limited to the classification of motion pictures and TV programs.
The power to classify includes the power to censor. The Board can x-rate films and TV programs and thus ban their
public exhibition or broadcast. And once it declares that a motion picture or television program is, for example,
indecent or contrary to law, as in the case of the INC program in question, its declaration becomes the law. Unless the
producer or exhibitor is willing to go to court, shouldering not only the burden of showing that his movie or television
program is constitutionally protected but also the cost of litigation, the ban stays.16 This is censorship in its baldest
form. This is contrary to the fundamental tenet of our law that until and unless speech is found by the courts to be
unprotected its expression must be allowed.
In an effort to save this provision from constitutional attack, it is alleged that the TV program in question was
disallowed pursuant to the rules of the Board which prohibit the showing of motion pictures or TV programs
containing "malicious attack[s] against any race, creed or religion." It is contended that this rule impermissibly
broadens the prohibition in §3(c), because this ground ("malicious attack[s] against any race, creed or religion") is not
among those provided therein.
However, §3(c) gives the Board authority to stop the showing of motion pictures, television programs and publicity
materials which are "contrary to law," and Art. 201(2) (b) (3) of the Revised Penal Code makes it a crime for anyone
to exhibit "shows which offend any race or religion." It is true that Art. 201 (2) (b) (3) refers to subsequent
punishment, whereas we are dealing here with prior restraint. However, by authorizing the censorship of materials
which in the opinion of the Board are "contrary to law," §3(c) makes what is only a ground for subsequent punishment
also a ground for prior restraint on expression. It is §3(c) of P.D. No. 1986, and not only the rules implementing it,
which is unconstitutional.17
While I think the Board may be granted the power to preview materials, it is only for the purpose of enabling the
Board to decide whether to seek their prohibition by the court in the interest of safeguarding morality, good order and
public safety, considering the pervasive influence of broadcast media compared to that of the print media. But concern
with possible deleterious effects of movies and television shows cannot and should not be allowed to overshadow the
equally important concern for freedom of expression and blind us to the danger of leaving the ultimate determination
of what expression is protected and what is not to a board of censors. The protection of the youth should be in the first
place the concern of parents, schools and other institutions. I do not think that society is so morally impoverished that
we have to draw on a group of censors for ultimate moral lesson and leading.
If we have to call on the assistance of any agency at all, it must be the courts.18 There are many reasons why a system
of prior restraint (in those cases where it may validly be imposed) may only be administered by judges. First is that
the censor's bias is to censor. Second is that "only a determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression."19 As has been observed, "Central to the first amendment due process is the
notion that a judicial rather than an administrative determination of the character of the speech is necessary. . . .
[C]ourts alone are competent to decide whether speech is constitutionally protected."20 Third, the members of the
Board do not have the security of tenure and of fiscal autonomy necessary to secure their independence.
Indeed, I cannot understand why, after ruling that the valuation of property in eminent domain is essentially a judicial
function which cannot be vested in administrative agencies,21 this Court should be willing to leave the valuation of
that priceless commodity - expression, whether by means of motion picture or television - to administrative agencies
with only occasional review by the courts. The trend may be toward greater delegation of judicial authority to
administrative agencies in matters requiring technical knowledge and as a means of relieving courts of cases which
such agencies can very well attend to. 22 There is no justification, however, for such delegation in the area of our
essential freedoms, particularly freedom of expression, where "only a judicial determination in an adversary
proceeding [can] ensure the necessary sensitivity to freedom of expression."23
We have witnessed such distinct possibility in the past to need any more lesson in the future to make us realize the
danger of leaving freedom of expression and religion - the essential freedom of the mind - in the care of an
administrative agency.
To the extent therefore that P.D. No. 1986, §3(c) vests in the Board the final authority to determine whether expression
by motion picture or television is constitutionally protected, I find it unconstitutional.
IV. The majority limit themselves to a determination of the correctness of the Board's finding that the video tapes in
question contain attacks on the Catholic religion, I find it difficult to pass upon this question because the contents of
the tapes are not in the record of this case.24 The trial court ruled that the tapes contain no attack against any religion
but only a discussion of the doctrines which the Iglesia Ni Cristo believes embody "superior and self evident truth."
On the other hand, the Court of Appeals, in reversing the trial court, found that the tapes "offend by verbal abuse other
religions" and are for that reason "indecent and contrary to good customs" within the meaning of P.D. No, 1986, §3(c).
Neither court, however, had any evidence to support its conclusions, because this case was submitted by the parties
solely on the basis of memoranda. What the majority of this Court call facts (pp. 16-17) are simply the opinions of
members of the Board that the video tapes contain attacks on the Catholic religion.
There are no facts on which to base judgment on this question. Even if there are, the clear and present danger test is
inapplicable. To be sure, in Gonzales v. Kalaw Katigbak this Court said:
[W]here the movies, theatrical productions, radio scripts, television programs, and other such media
of expression are concerned -- included as they are in freedom of expression - censorship, especially
so if an entire production is banned, is allowable only under the clearest proof of a clear and present
danger of a substantive evil to public safety, public morals, public health or any other legitimate
public interest.25
The clear and present danger test has been devised for use in criminal prosecutions for violations of laws punishing
certain types of utterances.26 While the test has been applied to the regulation of the use of streets and
parks27 -- surely a form of prior restraint - its use in such context can be justified on the ground that the content of the
speech is not the issue. But when the regulation concerns not the time, place or manner of speech but its content (i.e.,
it is content-based) the clear and present danger test simply cannot be applied. This is because a determination
whether an utterance has created a clear and present danger to public interests requires a factual record.
The test itself states that the question in every case is "whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has
a right to prevent." 28 However it may have been reformulated in later cases, the test essentially requires that the
causal connection between the speech and the evil apprehended be evident.29 But how can this be shown unless the
speech is first allowed? It is not enough that the tapes have been made and only their broadcast banned. What about
the audience reaction to the tapes? Even if we know what the tapes in this case contain, we cannot determine whether
their public broadcast would create a clear and present danger to public interests. The censorship board, trying to
determine whether to issue a permit, must necessarily speculate on impact which the words will have since the context
in which they will be uttered - the audience, the occasion, and the place - is totally lacking in the record. It is then
forced to apply a lesser standard of proof in deciding whether to impose a restraint on speech.
The majority claim that there is no need for a factual record in order to find that the Board in this case exceeded its
powers in disallowing the TV series in question. They argue that "acts of prior restraint are hobbled by the
presumption of invalidity and should be greeted with furrowed brews. It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this heavy burden, its act of censorship will be struck down. . . . In
the case at bar, respondent board did nothing to rebut the presumption." (p. 17)
That, however, is precisely the problem with the censorship law. It in effect places on the producer or exhibitor the
burden of going to court and of showing that his film or program is constitutionally protected. To paraphrase Sotto
v. Ruiz, which the majority cite as authority for sustaining the validity of §3(c), "Every intendment of the law is in
favor of the correctness of [the agency's] action."30 The Board would have this burden of justification if, as I believe it
should, is made to go to court instead and justify the banning of a film or TV program. That is why §3(c) should be
invalidated. One cannot defend the validity of the law and at the same time contend that in any court proceeding for
the review of the Board's decision the burden of justifying the ban should be on the Board.
The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the standard for judging the validity of
prior restraint on political expression is stricter than that for adjudging restraints on materials alleged to be obscene,
but not that the test of clear and present danger is applicable in determining whether or not a permit may be granted.
In Gonzales v. Kalaw Katigbak31 this Court echoed Justice Douglas's plea that "every writer, actor, or producer, no
matter what medium of expression he may use, should be freed from the censor." For indeed the full flowering of
local artistic talents and the development of the national intelligence can take place only in a climate of free
expression. A film producer, faced with the prospect of losing on his investment as a result of the banning of his movie
production, may well find himself compelled to submit to the wishes of the Board or practice self-censorship. The
expression of unpopular opinions, whether religious, political or otherwise is imperilled under such a system.
We have long ago done away with controls on the print media, it is time we did the same with the control on broadcast
media, which for so long operated under restraints,32 leaving the punishment for violations of laws to be dealt with by
subsequent prosecution.
For the foregoing reasons, I vote to declare §3(2) of P.D. No. 1986 unconstitutional and to reverse the decision of the
Court of Appeals, except in so far as it sustains the grant of power to the Board to preview materials for showing or
broadcast, consistent with my view that §3(b) is valid.

MELO, J., concurring and dissenting:

The enjoyment of the freedom of religion is always coupled with the freedom of expression. For the profession of
faith inevitably carries with it as a necessary appendage, the prerogative of propagation. The constitutional guaranty of
free exercise and enjoyment of religious profession and worship thus denotes the right to disseminate religious
information (American Bible Society vs. City of Manila 101 Phil. 386 [1957]). Any prior restriction upon a religious
expression would be a restriction on the right of religion. We recognize the role and the deep influence that religion
plays in our community. No less than the fundamental law of the land acknowledges the elevating influence of
religion by imploring the aid of almighty God to build a just and humane society. Any restriction that is to be placed
upon this right must be applied with greatest caution.
Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established religious organization has been well
with us for almost a century, with several millions of following quite a number of imposing and elegantly constructed
cathedrals and hundreds of chapels spread in many parts of the country, injecting profound influence not only in the
social and political aspect of the community but upon its moral values as well. Respect must be afforded a well-
established church, especially on matters concerning morality and decency lest no concept of morality could ever be
accepted with deference. Such preeminence in the community deserves no less than the confident expectation that it
will act in accordance with its avowed mission of promoting religious guidance and enlightenment. Its religious
programs must be accorded the presumption that the same will instill moral values that would be beneficial to its
adherents and followers, and perhaps to the community in general. The contrary must not be presumed. Its television
programs, therefore, should not be equated with ordinary movies and television shows which MTRCB is bound by the
law to monitor for possible abuse. One must recognize the power of State to protect its citizenry from the danger of
immorality and indecency motivated by the selfish desire of media entrepreneurs to accumulate more wealth, or of
bogus religious groups, for that matter, to mislead and beguile the unlettered and uninformed. But considering all
these circumstances, I see no cogent reason for the application of such power to the present case.
Freedom of religion and expression is the rule and its restriction, the exception. Any prior restriction on the exercise of
the freedom to profess religious faith and the propagation thereof will unduly diminish that religion's authority to
spread what it believes to be the sacred truth. The State can exercise no power to restrict such right until the exercise
thereof traverses the point that will endanger the order of civil society. Thus we have ruled in the case of Ebralinag
vs. The Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to
public safety, public morals, public health or any other legitimate public interest that the state has the
right and duty to prevent.
Correspondingly, the MTRCB has no authority to use as standard, the dangerous tendency rule, which we have long
abandoned and for which reason, the dangerous tendency standard under Subparagraph C, Section 3 of Presidential
Decree No. 1986 has no place in our statute books.
I therefore, vote to grant the petition.

VITUG, J., dissenting:

I agree with those who support the view that religious freedom occupies an exalted position in our hierarchy of rights
and that the freedom to disseminate religious information is a constitutionally-sanctioned prerogative that allows any
legitimate religious denomination a free choice of media in the propagation of its credo. Like any other right,
however, the exercise of religious belief is not without inherent and statutory limitations.
The Board disapproved the exhibition of a series of television programs of petitioner on the ground that they tend to
"offend and constitute an attack against other religions." An opinion has been expressed that the non-inclusion in
Section 3 of P.D. 1986 of an "attack against any religion," as a standard for classification, and so the deletion of the
phrase "offensive to other religions" found in the old censorship law (Executive Order No. 876), should be clear
enough to manifest a legislative intent "to do away with the standard." A reading of Section 3 of P.D. 1986 shows that
the Board is empowered to "screen, review and examine all . . . television programs" and to "approve or disprove,
delete objectionable portion from and/or prohibit the . . . television broadcast of . . . television programs . . . which, in
the judgment of the BOARD (so) applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs . . . ." I believe that the phrase "contrary to law" should
be read together with other existing laws such as, for instance, the provisions of the Revised Penal Code, particularly
Article 201, which prohibits the exhibition of shows that "offend another race or religion." I see in this provision a
good and sound standard. Recent events indicate recurrent violent incidents between and among communities with
diverse religious beliefs and dogma. The danger is past mere apprehension; it has become a virtual reality and now
prevalent in some parts of the world.
In order not to infringe constitutional principles, any restriction by the Board must, of course, be for legitimate and
valid reasons. I certainly do not think that prior censorship should altogether be rejected just because sanctions can
later be imposed. Regulating the exercise of a right is not necessarily an anathema to it; in fact, it can safeguard and
secure that right.
When I particularly ponder on the magnitude of the power of a television set, I find it more prudent to have a
deferment of an exhibition that may be perceived to be contrary to decency, morality, good customs or the law until, at
least, the courts are given an opportunity to pass upon the matter than rely merely on the availability of retribution for
actual injury sustained. A delay is not too high a price to pay for a possible damage to society that may well tum out to
be incalculable and lasting.
In this instance, I vote for the dismissal of the petition.

KAPUNAN, J., concurring and dissenting:

While I concur in the result of the majority's decision reversing that of the Court of Appeals insofar as it set aside the
action of respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119 and 121, with due respect, I
cannot agree with its opinion that respondent Board of Review for Motion pictures and Television (now MTRCB) has
the power to review petitioner's TV program "Ang Iglesia ni Cristo." The religious TV program enjoys the
Constitution's guarantee of freedom of religion,1 and of speech and
expression.,2 and cannot be subject to prior restraint by the Board by virtue of its powers and functions under Section
3 of P.D. 1986 which provides as follows:
Sec. 3. Powers and Functions. -- The BOARD shall have the following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for
general viewing, imported or produced in the Philippines, and in the latter case, whether they be for
local viewing or for export.
c) To approve or disapprove, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of
the motion pictures, television programs and publicity materials subject of the preceding paragraph,
which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent, contrary to law and/or good customs, Injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage
the commission of violence or of a wrong or crime, such as but not limited to:
 i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence and
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and,
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are subjudice in nature.
Under the aforequoted provisions, the MTRCB, while nominally a classification board, is granted the power not only
to classify, but also to approve or disapprove/prohibit exhibition of film or television broadcasts of motion pictures
and TV programs.
The freedom to disseminate religious information is a right protected by the free exercise clause of the Constitution. It
encompasses a wide range of ideas and takes many forms. In the process of enlightening the adherents or convincing
non-believers of the truth of its beliefs, a religious sect or denomination is allowed the free choice of utilizing various
media, including pulpit or podium, print, television film, and the electronic mail.
The broad latitude of freedom afforded by the free exercise clause is an historic outgrowth of our country's twin
colonial experiences: our forefathers' aversion against the Spanish colonial government's interference with religious
belief and practice and the transplantation of American Constitutional thinking into the mainstream of our political
life, which brought with it the ideas of Protestant dissent and humanistic rationalism dominant in the debates of the
American Constitutional Convention. These two poles conjoined to place the individual conscience beyond the
coercive power of government. Involving as it does the relationship of man to his Creator, respect for the inviolability
of conscience lay at the core of the free exercise clauses in our Constitutions from 1935 to 1987.3
It is, therefore, settled that religious freedom is a fundamental right entitled to the highest priority and amplest
protection among human rights. Because of its exalted position in our hierarchy of civil rights, the realm of religious
belief is generally insulated from state action, and state interference with such belief is allowed only in extreme cases.
Free exercise encompasses all shades of expression of religious belief. It includes the right to preach, proselyte and to
perform other similar functions.4 As oftentimes these aspects of the free exercise clause fall within areas affected by
government regulation, the importance of religious freedom is such that the state must make special provisions to
relieve religious liberty from restrictions imposed by generally legitimate government regulations5Commenting on
religious freedom and other freedoms of conscience, this Court held in Reyes v. Bagatsing6 that:
[O]n the judiciary -- even more so than on the other departments -- rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course dispense with what has been felicitously termed by Justice Holmes
"as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of such rights.7
Even before film and television achieved the power and influence it has gained in the last few decades, the U.S.
Supreme Court, in the case of Burtsyn v. Wilson,8 conceded that movies were a significant medium for the
dissemination of ideas, affecting "public attitudes and behavior in a variety of ways, ranging from the direct espousal
of a political or social doctrine to the subtle shaping of thought which characterizes artistic expression."9The U.S.
Supreme Court emphasized that the significance of motion pictures as an organ of public opinion is not diluted by the
fact that films are "designed to entertain as well as to inform," 10 thus, recognizing that motion pictures fell within the
sphere of constitutionally protected speech and expression. Responding to the question of censorship in the context of
film as protected expression, the U.S. Supreme Court, in the case of Freedman v. Maryland 11 held that:
The administration of a censorship system for motion pictures presents peculiar dangers to
constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts
 the initial burden on the exhibitor or distributor. Because the censor's business is to censor, there is an
inherent danger that he may be less responsive than a court part of an independent branch of
government -- to constitutionally protected interests in free expression.12
In American Bible Society v. City of Manila,13 this Court held that any restraint on the right to disseminate religious
information "can only be justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent."14 Affirming the use of this "clear and
present danger" standard in cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee
warned that "[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent."15
Religious freedom is not of course an absolute right. However, given its exalted position in our hierarchy of civil
rights, the essence of all that has been said and written about the subject is that only those interests of the highest order
and those not otherwise served can overbalance claims to free exercise of religion.16 In a highly sensitive
constitutional area, only the gravest situation endangering paramount govemmental interests give occasion for
permissible limitation. And even in such rare cases, government may justify an inroad into religious liberty only by
showing that it is the least restrictive means of achieving the compelling state interest. A facially neutral regulation
apparently evenhandedly applied to all religious sects and denominations would be constitutionally suspect when it
imposes an undue burden on the exercise of religious freedom. "Rules are rules" is not by itself a sufficient
justification for infringing religious liberty.17
It is my submission that the government, under the guise of its regulatory powers in the censorship law (P.D. 1986 and
its corresponding implementing rules and regulations), does not have the power to interfere with the exercise of
religious expression in film or television by requiring the submission of the video tapes of petitioner's religious
program before their public viewing, absent a showing of a compelling state interest that overrides the constitutional
protection of the freedom of expression and worship. Even if government can demonstrate a compelling state interest,
it would only burden such fundamental right like the free exercise of religion by the least intrusive means
possible.18 There is no demonstration here of any sufficient state interest to justify the infringement.
In any case, petitioner's religious programs, which in their very essence and characterization are the exercise of
religious freedom, cannot possibly come under the category of the objectionable matters enumerated in Section 3(c) of
P.D. 1986 or analogous thereto. It is not likely that propagation of religion which has been spoken of as "a profession
of faith that binds and elevates man to his Creator"19 will involve pornography excessive violence or danger to
national security.
Significantly, the enumeration in Section 3(c) does not include the standard "attack against any religion" as among
those considered objectionable and subject to censorship. Respondents justify this omission by stating that any form
of expression "contrary to law" could be subject to regulation because the enumeration is in any case not exclusive,
and that the phrase "contrary to law" should, in the Solicitor General's words in behalf of respondents, be construed
"in relation to Article 201 of the Revised Penal Code which proscribes the exhibition of shows that "offend any race or
religion."20 Respondents moreover argue that the Rules and Regulations of the MTRCB issued pursuant to P.D. 1986
in any case explicitly furnish the standard left out in the enumeration when it provides:
Sec. 4. GOVERNING STANDARD. -- a) The BOARD shall judge the motion pictures and television
programs and publicity materials submitted to it for review, using as standard contemporary Filipino
cultural values to abate what are legally objectionable for being immoral, indecent, contrary to law
and good customs, injurious to the prestige of the Republic of the Philipines or its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime such as but not
limited to:
xxx xxx xxx
vii) Those which clearly constitute an attack against any race, creed, or religion as distinguished from
individual members thereof; . . .
There are several reasons why I cannot agree with respondent Board's contention that it may add the standard "attack
against any religion" among those enumerated by P.D. 1986. While the law's enumeration is concededly not exclusive,
inclusion of other standards should be made in the strict context of the words "immoral, indecent, contrary to law
and/or good customs." Specific standards following a general enumeration cannot go beyond the scope of the latter.
In the first place, the word "indecent" in censorship law has a narrow meaning, confined to obscenity regulation.12 It
cannot be conveniently employed as a catch-all term embracing all forms of expression considered noxious by the
Board. On the other hand, "contrary to law," had particular significance in the old censorship laws because those laws
explicitly included anything "offensive to other religions" among their enumerated standards. In the light of what the
Solicitor General describes as the "transitional" nature of P.D. 1986, the better view would be that the omission of
"attack against any religion" among the enumerated standards was intentional and part of the evolving process of
fashioning a system of strict classification of films and television programs as opposed to censorship. As this phrase
was ubiquitous in the old censorship laws (particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses
the manifest intention of the law-making authority to do away with the standard. This view is supported by the
Executive Branch itself, through the Opinion of then Minister of Justice Neptali Gonzales who stated, when the case
came up before his office for review, that:
[T]he question whether the BRMPT (now MTRCB) may preview and censor the subject television
program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of P.D.
1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A,
which prescribes the standards for censorship, to wit: "immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines or its people, or with
dangerous tendency to encourage the commission of violence, or a wrong" as determined by the
Board, "applying contemporary Filipino cultural values as standard". As stated, the intention of the
Board to subject the INC's television program to "previewing and censorship is prompted by the fact
that its religious program" makes mention of beliefs and practices of other religion". On the face of
the law itself, there can conceivably be no basis for censorship of said program by the Board as much
as the alleged reason cited by the Board does not appear to be within the contemplation of the
standards of censorship set by law.22
Additionally, the phrase "contrary to law" cannot and should not be understood to refer to Article 20123 of the Revised
Penal Code, as respondents mistakenly suggest. Article 201 deals with the subject of subsequent punishment; P.D.
1986 clearly treats with an altogether different matter -- prior restraint and censorship. The two laws stand at opposite
poles in the continuum of regulation and punishment.
Thus, the censor's cut poses a peculiar danger because it altogether skirts time-honored judicial tests and standards
utilized in determining those forms of expression that fall within the area of protected speech or expression, and
because, as between prior restraints and the subsequent sanctions meted after proof of violation of specific penal
statutes, the former prevents the speech or expression from entering the marketplace of ideas.24That is exactly the
effect of the orders assailed by petitioner in the instant case. More significantly, under the specific facts and
circumstances of the case confronting us, what is sought to be kept out of the marketplace of ideas is not only ordinary
speech or expression, two constitutional values which already enjoy primacy among our civil rights, but also religious
speech or expression utilizing the medium of television.
It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard applicable to all religious sects
and denominations. I cannot agree. The "neutrality" standard has been raised in numerous free exercise cases before
the courts, the most recent having been the Flag Salute cases.25 However, a regulation neutral on its face poses free
exercise problems when it creates or has the potential of imposing undue burdens on religion. "Democratic
government acts to reinforce the generally accepted values of a given society and not merely the fundamental ones
which relate to its political structure."26 Facially neutral standards are a facet of prevailing concensus. The old flag
salute cases are testaments to the natural preference for the prevailing political and social morality over the religious
liberty of minorities. The prevalent view tends to impose its idea of what is religious and what is not over and above
the protests of the other religions, sects and denominations.27 Applying "contemporary Filipino standards" and values
(the general test in P.D. 1986) to religious thought and expression allows an "overarching" into a constitutionally
protected area and potentially would simply provide the Board with a veiled excuse for clamping down against
unorthodox religious thought and expression. Measured in terms of the historic purpose of the guarantee, the free
exercise provision in our Constitution not only insulates religion against governmental power, but when taken together
with the Establishment clause, affords protection to religious minorities by preventing the use of that power in
imposing the majority's will.
We are faced with a case of censorship and restraint which, I stated earlier, touches upon one of the most private and
sensitive of domains: the realm of religious freedom, thought and expression. In this domain, sharp differences may
arise such that the tenets of one individual may seem the "rankest error" to his neighbor.28 In the process of persuading
others about the validity of his point of view, the preacher sometimes resorts to exaggeration and vilification.
However, the determination of the question as to whether or not such vilification, exaggeration or fabrication falls
within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated
by an administrative body such as a Board of censors.29 Even if the exercise of the liberties protected by the speech,
expression and religion clauses of our Constitution are regarded as neither absolute nor unlimited, there are
appropriate laws which deal with such excesses. The least restrictive alternative would be to impose subsequent
sanctions for proven violations of laws, rather than inflict prior restraints on religious expression.
Our penal law punishes libel, or acts or speeches offensive to other religions, and awards damages whenever
warranted. In our legal scheme, courts essentially remain the arbiters of the controversies affecting the civil and
political rights of persons. It is our courts which determine whether or not certain forms of speech and expression
have exceeded the bounds of correctness, propriety or decency as to fall outside the area of protected speech. In the
meantime, the liberties protected by the speech and expression and free exercise clauses are so essential to our society
that they should be allowed to flourish unobstructed and unmolested.30
The majority opinion professes fealty to freedom of religion which it openly admits, has been accorded a preferred
status by the framers of our fundamental laws, and affirms that "(D)eeply ensconced in our fundamental
law is its hostility against all prior restraints on speech, including religious speech."31 The majority then adds
pointedly that "acts of prior restraint are hobbled by the presumption of invalidity and should be greeted with
furrowed brews. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this
heavy burden, its acts of censorship will be struck down. It failed in the case at bar."32
And yet, the majority at the same time would grant MTRCB the power to review the TV religious programs because
"with its expertise," it "can determine whether its sulphur will bring about the substantive evil feared by the
law."33The majority thus would uphold the power of the Board as an administrative body with quasi-judicial power to
preview and classify TV programs, citing with favor the 1921 decision of this Court in Sotto vs. Ruiz34 wherein it was
held that:
As has been said, the performance of the duty of determining whether a publication contains printed
matter of a libelous character rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every 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 United States Supreme Court and pertaining
to the United States Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong.
I share with Justice Mendoza's view that the majority's pronouncement would in effect place on the producer or
exhibitor the burden of going to court and of showing that his film or program is constitutionally protected. This
throws overboard the fundamental tenet that any act that restrains speech is presumed invalid and it is the burden of
the censor to overthrow this presumption. In the context of the present case, if the Board disapproves a TV religious
program or deletes a portion thereof, it is the exhibitor or producer who will go to court to prove that the Board is
wrong and the court will not interfere with the Board's decision unless it can be clearly shown that it is wrong,
following the ruling in Sotto vs. Ruiz.
The majority's ruling, I am afraid, constitutes a threat to constitutionally protected speech and expression and
supplants a judicjal standard for determining constitutionally protected speech and expression with the censor's
standard. The heavy burden on the imposition of prior restraints is shifted away from the state by imposing upon the
exhibitor the obligation of proving that the religious programs fall within the realm of protected expression. This
leaves the exhibitor with only two unwanted options: either 1) he himself deletes the portions which he anticipates the
Board might possibly object to prior to submission to that body and thereby obtains the censor's nod, or 2) submits the
Video tapes in their entirety and risks disapproval or deletion, in which case he may go to court and show that the
Video tapes contain constitutionally protected speech and expression. In the first situation, the message loses its
essence and substance. The second scenario may entail tremendous amount of money, time and effort in a prolonged
litigation. Either case constitutes grievous assault on the freedom of speech and religion.
The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioner's TV programs. In
that case, the Court held that the Acting Director of the Bureau of Posts is vested with authority to determine what
mail matter is obscene, lewd, filthy or libelous, pursuant to Section 1954 of the old Administrative Code which
provides, among others, that no lewd, lascivious, filthy, indecent or libelous character shall be deposited in, or carried
by, the mails of the Philippine Island, or be delivered to its addressee by any officer or employee of the Bureau of
Posts. Petitioner's programs which are televised in the exercise of freedom of worship cannot be placed in the category
of the printed matter proscribed in the old Administrative Code. Freedom of worship is such a precious commodity in
our hierarchy of civil liberties that it cannot be derogated peremptorily by an administrative body or officer who
determines, without judicial safeguards, whether or not to allow the exercise of such freedom.
The rights of free expression and free exercise of religion occupy a unique and special place in our constellation of
civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their
expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and
the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a
form of prior restraint is anathema to a society which places high significance to these values.
WHEREFORE, premises considered, I vote to grant the petition.

G.R. No. L-8974 October 18, 1957

APOLONIO CABANSAG, plaintiff,

vs.
GEMINIANA MARIA FERNANDEZ, ET AL., defendants.
APOLONIO CABANSAG, ROBERTO V. MERRERA and RUFINO V. MERRERA, respondents-appellants.
Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose G. Bautista and Solicitor Troadio T.
Quiazon, Jr., appellee.
Merrera and Merrera for appellants.
BAUTISTA ANGELO, J.:
This is a contempt proceeding which arose in Civil Case No. 9564 of the Court of First Instance of Pangasinan
wherein Apolonio Cabansag and his lawyers Roberto V. Merrera were found guilty and sentenced the first to pay a
fine of P20 and the last two P50 each with the warning that a repetition of the of offense will next time be heavily
dealt with.
Apolonio Cabansag filed on January 13, 1947 in the Court of First Instance of Pangasinan a complaint seeking the
ejectment of Geminiana Fernandez, et al. from a parcel of land. Defendants filed their answer on January 31, 1947 and
a motion to dismiss on February 2, 1947 and a motion of plaintiff's counsel, set the case for hearing on July 30, 1947.
The meeting was postponed to August 8, 1947. On that day only one witness testified and the case was postponed to
August 25, 1947. Thereafter, three incidents developed, namely: one regarding a claim for damages which was
answered by defendants, another concerning the issuance of a writ of preliminary injunction which was set for on
March 23, 1948, and the third relative to an alleged contempt for violation of an agreement of the parties approved by
the court. Pleadings were filed by the parties on these incidents and the court set the case for hearing on October 27,
1948. Hearing was postponed to December 10, 1948. On this date, only part of the evidence was received and the next
hearing was scheduled for January 24,1949 when again only a part of the evidence was received and the case was
continued to October 4, 1949.
On October 4, 1949, the court, presided over by Judge Villamor upon petition of both parties, ordered the
stenographers who took down the notes during the previous hearings to transcribe them within 15 days upon payment
of their fees, and the hearing was postponed until the transcript of said notes had been submitted. Notwithstanding the
failure of the stenographers to transcribe their notes, the hearing was set for March 17, 1950. Two more
postponements followed for March 23, 1950 and March 27, 1950. On August 9, 1950, August 23, 1950, September
26, 1950 and November 29, 1950, hearings were had but the case was only partly tried to be postponed again to
January 30, 1951 and February 19, 1951. Partial hearings were held on February 20, 1951, March 12, 1951 and June
6,1951. These hearings were followed by three more postponements and on August 15, 1951, the case was partially
heard. After this partial hearing, the trial was continued on March 6, 1952 only to be postponed to May 27, 1952. No
hearing took place on said date and the case was set for continuation on December 9, 1952 when the court, Judge
Pasicolan presiding, issued an order suggesting to the parties to arrange with the stenographers who took down the
notes to transcribe their respective notes and that the case would be set for hearing after the submission of the
transcript. From December 9, 1952 to August 12, 1954, no further step was taken either by the court or any of the
contending parties in the case. .
On December 30, 1953, President Magsaysay assumed office, he issued Executive Order No. I creating the
Presidential Complaints and Action Commission (PCAC), which was later superseded by Executive Order 19
promulgated on March 17, 1954. And on August 12, 1954 Apolonio Cabansag, apparently irked and disappointed by
the delay in the disposition of his case, wrote the PCAC, a letter copy which he furnished the Secretary of Justice and
the Executive Judge of the Court of First Instance of Pangasinan, which reads:
We, poor people of the Philippines are very grateful for the creation of your Office. Unlike in the old days,
poor people are not heard, but now the PCAC is the sword of Damocles ready to smite bureaucratic
aristocracy. Poor people can now rely on PCAC to help them.
Undaunted, the undersigned begs to request the help of the PCAC in the interest of public service, as
President Magsaysay has in mind to create the said PACC, to have his old case stated above be terminated
once and for all. The undersigned has long since been deprived of his land thru the careful maneuvers of a
tactical lawyer. The said case which had long been pending could not be decided due to the fact that the
transcript of the records has not, as yet, been transcribed by the stenographers who took the stenographic
notes. The new Judges could not proceed to hear the case before the transcription of the said notes. The
stenographers who took the notes are now assigned in another courts. It seems that the undersigned will be
deprived indefinitely of his right of possession over the land he owns. He has no other recourse than to ask
the help of the ever willing PCAC to help him solve his predicament at an early date.
Now then, Mr. Chief, the undersigned relies on you to do your utmost best to bring justice to its final
destination. My confidence reposes in you. Thanks.

Most confidently yours,

(Sgd.) APOLONIO CABANSAG

Plaintiff

Upon the receipt of the letter, the Secretary of Justice indorsed it to the Clerk of Court of First Instance of Pangasinan
instructing him to require the stenographers concerned to transcribe their notes in Civil Case No. 9564. The clerk of
court, upon receipt of this instruction on August 27, 1954, referred the matter to Judge Jesus P. Morfe before whom
the case was then informing him that the two stenographers concerned, Miss Iluminada Abello and Juan Gaspar, have
already been assigned elsewhere. On the same date, Judge Morfe wrote the Secretary of Justice informing him that
under provisions of Act No. 2383 and Section 12 of Rule 41 of the Rules of Court, said stenographers are not obliged
to transcribe their notes except in cases of appeal and that since the parties are not poor litigants, they are not entitled
to transcription free of charge, aside from the fact that said stenographers were no longer under his jurisdiction.
Meanwhile, on September 1, 1954, Atty. Manuel Fernandez, counsel for defendants, filed a motion before Judge
Morfe praying that Apolonio Cabansag be declared in contempt of court for an alleged scurrilous remark he made in
his letter to the PCAC to the effect that he, Cabansag, has long been deprived of his land "thru the careful maneuvers
of a tactical lawyer", to which counsel for Cabansag replied with a counter-charge praying that Atty. Fernandez be in
turn declared in contempt because of certain contemptuous remarks made by him in his pleading. Acting on these
charges and counter- charges, on September 14, 1954, Judge Morfe dismissed both charges but ordered Cabansag to
show cause in writing within 10 days why he should not be held liable for contempt for sending the above letter to the
PCAC which tended to degrade the court in the eyes of the President and the people. Cabansag filed his answer stating
that he did not have the idea to besmirch the dignity or belittle the respect due the court nor was he actuated with
malice when he addressed the letter to the PCAC; that there is no single contemptuous word in said letter nor was it
intended to give the Chief Executive a wrong impression or opinion of the court; and that if there was any inefficiency
in the disposal of his case, the same was committed by the judges who previously intervened in the case.
In connection with this answer, the lawyers of Cabansag, Roberto V. Merrera and Rufino V. Merrera' also submitted a
written manifestation stating that the sending of the letter to their client to the PCAC was through their knowledge and
consent because they believed that there was nothing wrong in doing so. And it appearing that said attorneys had a
hand in the writing and remittance of the letter to the PCAC, Judge Morfe on, on September 29, 1954, issued another
order requiring also said attorneys to show cause why they should not likewise be held for contempt for having
committed acts which tend to impede, obstruct or degrade the administration of justice.
Anent the charge for contempt preferred by Judge Morfe against Apolonio Cabansag, several incidents took place
touching on the right of the Special Counsel of the Department of Justice to appear as counsel for Cabansag, which
were however settled when the court allowed said Special Counsel to appear as amicus curiae in his official capacity.
In addition to this Special Counsel, other members of the local bar were likewise allowed to appear for respondents in
view of the importance of the issues involved. After due hearing, where the counsel of respondents were allowed to
argue and submit memoranda, the decision finding respondents guilty of contempt and sentencing them to pay a fine
as stated in the early part of this decision. Respondents in due time appealed to this Court.
The issues involved in this appeal appear well stated in the decision of the trial Court. They are: (a) Did the writing in
the letter in question to the PCAC tend directly or indirectly to put the lower court into disrepute or belittle, degrade or
embarrass it in its administration of justice?; and (b) Did writing of said letter tend to draw the intervention of the
PCAC in the instant case which will have the effect of undermining the court's judicial independence?
We agree that the trial court that courts have the power to preserve their integrity and maintain their dignity without
which their administration of justice is bound to falter or fail (Villavicencio vs. Lukban, 39 Phil., 778; Borromeo vs.
Mariano, 41 Phil., 322). This is the preservative power to punish for contempt (Rule 64, Rules of Court; Villavicencio
vs. Lukban, supra). This power is inherent in all courts and essential to their right of self-preservation (Slade Perkins
vs. Director of Prisons, 58 Phil., 271). In order that it may conduct its business unhampered by publications which
tends to impair the impartiality of its decisions or otherwise obstruct the administration of justice, the court will not
hesitate to exercise it regardless of who is affected. For, "as important as is the maintenance of unmuzzled press and
the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary" (In re Lozano and
Quevedo, 54 Phil., 801).The reason for this is that respect of the courts guarantees the stability of their institution.
Without such said institution would be resting on a very shaky foundation (Salcedo vs. Hernandez, 61 Phil., 724).
The question that now arises is: Has the lower court legitimately and justifiably exercised this power in the instant
case?
The lower court tells us that it has because in its opinion the act of respondents to put it belittle or degrade or
embarrass it in its administration of justice, and so it punished them for contempt to protect its judicial independence.
But appellants believe otherwise, for they contend that in sending the letter in question to the PCAC, they did nothing
but to exercise their right to petition the government for redress of their grievance as guaranteed by our constitution
(section 1, paragraph 8, Article III).
The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably
for consultation in respect affairs and to petition for a redress of grievances." The First Amendments of the
Federal expressly guarantees that right against abridgement by Congress. But mention does not argue
exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles
of liberty and justice which lie at the base of all civil and political institutions,- principles which the
Fourteenth Amendment embodies in the general terms of its due process clause. (Emerson and Haber,
Political and Civil Rights in the United States, p. 419.).
We are therefore confronted with a clash of two fundamental rights which lie at the bottom of our democratic
institutions-the independence of the judiciary the right to petition the government for redress of grievance. How to
balance and reconcile the exercise of these rights is the problem posed in the case before us.
. . . A free press is not to be judiciary, nor an independent judiciary to a free press. Neither has primacy over
the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if
necessary, be vindicated. And one of the potent means of assuring judges their independence is a free press.
(Justice Frankfurter, concurring in Pennekamp vs. Florida, 328 U.S. 354-356)
Two theoretical formulas had been devised in the determination of conflicting rights of similar import in an attempt to
draw the proper constitutional boundary between freedom of expression and independence of the judiciary. These are
the "clear and present danger" rule and the "dangerous tendency" rule. The first as interpreted in a number of cases,
means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence
extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil"
sought to be prevented. And this evil is primarily the "disorderly and unfair administration of justice." This test
establishes a definite rule in constitutional law. It provides the criterion as to what words maybe published. Under this
rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such
advocacy will harm the administration of justice.
This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in 1919, and ever since it has afforded a
practical guidance in a great variety of cases in which the scope of the constitutional protection of freedom of
expression was put in issue.1 In one of said cases, the United States Supreme Court has made the significant
suggestion that this rule "is an appropriate guide in determining the constitutionality of restriction upon expression
where the substantial evil sought to be prevented by the restriction is destruction of life or property or invasion of the
right of privacy" Thornhill vs. Alabama, 310 U.S. 88).
Thus, speaking of the extent and scope of the application of this rule, the Supreme Court of the United States said
"Clear and present danger of substantive evils as a result of indiscriminate publications regarding judicial proceedings
justifies an impairment of the constitutional right of freedom of speech and press only if the evils are extremely
serious and the degree of imminence extremely high. . . . A public utterance or publication is not to be denied the
constitutional protection of freedom of speech and press merely because it concerns a judicial proceeding still pending
in the courts, upon the theory that in such a case it must necessarily tend to obstruct the orderly and fair administration
of justice. The possibility of engendering disrespect for the judiciary as a result of the published criticism of a judge is
not such a substantive evil as will justify impairment of the constitutional right of freedom of speech and press."
(Bridges vs. California, 314 U.S. 252, syllabi)
No less important is the ruling on the power of the court to punish for contempt in relation to the freedom of speech
and press. We quote; "Freedom of speech and press should not be impaired through the exercise of the punish for
contempt of court unless there is no doubt that the utterances in question are a serious and imminent threat to the
administration of justice. A judge may hold in contempt one who ventures to publish anything that tends to make him
unpopular or to belittle him. . . . The vehemence of the language used in newspaper publications concerning a judge's
decision is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an
imminent not merely a likely, threat to the administration of justice. (Craig vs. Harney, 331 U. S. 367, syllabi)
And in weighing the danger of possible interference with the courts by newspaper criticism against the right of free
speech to determine whether such criticism may constitutionally be punished as contempt, it was ruled that "freedom
of public comment should in borderline instances weigh heavily against a possible tendency to influence pending
cases." (Pennekamp vs. Florida, 328 U. S. 331).
The question in every case, according to Justice Holmes, is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that
congress has a right to prevent. It is a question of proximity and degree (Schenck vs. U. S.,supra).
The "dangerous tendency" rule, on the other hand, has been adopted in cases where extreme difficulty is confronted
determining where the freedom of expression ends and the right of courts to protect their independence begins. There
must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the
press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute.
They are subject to restrictions and limitations, one of them being the protection of the courts against contempt
(Gilbert vs. Minnesota, 254 U. S. 325.)
This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or
unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if
the natural tendency and probable effect of the utterance be to bring about the substantive evil the utterance be to
bring about the substantive evil which the legislative body seeks to prevent. (Gitlow vs. New York, 268 U.S. 652.).
It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by
the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one
may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language,
and prevents the punishment of those who abuse this freedom. . . . Reasonably limited, it was said by story in
the passage cited this freedom is an inestimable privilege in a free government; without such limitation, it
might become the scourge of the Republic.
xxx xxx xxx
 And, for yet more imperative reasons, a state may punish utterances endangering the foundations of organized
government and threatening its overthrow by unlawful means. These imperil its own existence as a
constitutional state. . . .
xxx xxx xxx
. . . And the immediate danger is none the less real and substantial because the effect of a given utterance
cannot be accurately foreseen. The state cannot reasonably be required to measure the danger from every such
utterance in the nice balance of a jeweler's scale. A single revolutionary spark, may kindle a fire that,
smoldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the state
is acting arbitrarily or unreasonably when, in the exercise of its judgment as to the measures necessary to
protect the public peace and safety it seeks to extinguish the spark without waiting until it has enkindled the
flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for
its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or
imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress
the threatened danger in its incipiency. In People vs. Lloyd, supra, p. 35 (136 N. E. 505), it was aptly said:
Manifestly, the legislature has authority to forbid the advocacy of a doctrine until there is a present and
imminent danger of the success of the plan advocated. If the state were compelled to wait until the
apprehended danger became certain, than its right to protect itself would come into being simultaneously with
the overthrow of the government, when there would be neither prosecuting officers nor courts for the
enforcement of the law." Gitlow va. New York, supra.)
The question then to be determined is: Has the letter of Cabansag created a sufficient danger to a fair administration of
justice? Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned
above?
Even if we make a careful analysis of the letter sent by appellant Cabansag to the PCAC which has given rise to the
present contempt proceedings, we would at once see that it was far from his mind to put the court in ridicule and much
less to belittle or degrade it in the eyes of those to whom the letter was addressed for, undoubtedly, he was compelled
to act the way he did simply because he saw no other way of obtaining the early termination of his case. This is clearly
inferable from its context wherein, in respectful and courteous language, Cabansag gave vent to his feeling when he
said that he "has long since been deprived of his land thru the careful maneuvers of a tactical lawyer"; that the case
which had long been pending could not be decided due to the fact that the transcript of the records has not as yet, been
transcribed by the stenographer who took the stenographic notes", and that the new Judges could not proceed to hear
the case before the transcription of the said notes." Analyzing said utterances, one would see that if they ever criticize,
"the criticism refers, not to the court, but to opposing counsel whose tactical maneuvers" has allegedly caused the
undue delay of the case. The grievance or complaint, if any, is addressed to the stenographers for their apparent
indifference in transcribing their notes.
The only disturbing effect of the letter which perhaps has been the motivating factor of the lodging of the contempt
charge by the trial judge is the fact that the letter was sent to the Office of the President asking for help because of the
precarious predicament of Cabansag. While the course of action he had taken may not be a wise one for it would have
been proper had he addressed his letter to the Secretary of Justice or to the Supreme Court, such act alone would not
be contemptuous. To be so the danger must cause a serious imminent threat to the administration of justice. Nor can
we infer that such act has "a dangerous tendency" to belittle the court or undermine the administration of justice for
the writer merely exercised his constitutional right to petition the government for redress of a legitimate grievance.
The fact is that even the trial court itself has at the beginning entertained such impression when it found that the
criticism was directed not against the court but against the counsel of the opposite party, and that only on second
thought did it change its mind when it developed that the act of Cabansag was prompted by the advice of his lawyers.
Nor can it be contended that the latter is groundless or one motivated by malice. The circumstances borne by the
record which preceded the sending of that letter show that there was an apparent cause for grievance.
Thus, the record shows that on January 13, 1947, or more than 8 years ago, appellant Cabansag filed with the lower
court a complaint against Geminiana Fernandez, et al. seeking to eject them from a portion of land covered by a
torrens title. On October 4, 1949, or two years thereafter, the court, Judge Villamor presiding, issued an order
requiring the stenographers who took down the notes to transcribe them within 15 days upon payment of their
corresponding fees. On December 9, 1952, or almost 3 years thereafter, the court, Judge Pasicolan presiding, issued a
similar order requiring the stenographers to transcribe their notes and decreeing that the case be set for hearing after
said notes had been transcribed. No further step was taken from his last date either by the by the court or by the
opposing parties. Meanwhile, the stenographers were given assignment elsewhere, and when this matter brought to
the attention of the court by its own clerk of court, said court in an indorsement sent to the Secretary of Justice
expressed its inability to take action in view of the fact that the stenographers were no longer under its jurisdiction.
And in said indorsement nothing was said about its readiness to continue the trial even in the absence of the transcript
of the notes.
Under such a state of affairs, appellant Cabansag cannot certainly be blamed for entertaining the belief that the only
way by which he could obtain redress of his grievance is to address his letter to the PCAC which after all is the office
created by the late President to receive and hear all complaints against officials and employees of the government to
facilitate which the assistance and cooperation of all the executive departments were enjoined (Executive Order No. 1,
as amended by Executive Order No. 19). And one of the departments that come under the control of the President is
the Department of Justice which under the law has administrative supervision over courts of first instance.(Section 83,
Revised Administrative Code) The PCAC is part of the Office of the President. It can, therefore, be said that the letter
of Cabansag though sent to the PCAC is intended for the Department of Justice where it properly belongs.
Consequently, the sending of that letter may be considered as one sent to the Department of Justice and as such cannot
constitute undue publication that would place him beyond the mantle of protection of our constitution.
. . . under the presidential type of government which we adopted and considering the departmental
organization established and continued in force by paragraph, section 12, Article VII, of our Constitution, all
executive and administrative organizations are adjuncts of the Executive Department, the heads of the
executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand
that he act personally, the multifarious executive and administrative functions of the Chief Executive are
performed by and through the executive departments, and the acts of the secretaries of such departments,
performed and promulgated in the regular course of business, are unless disapproved or reprobated by the
Chief Executive presumptively the acts of the Chief Executive. (Villena vs. The Secretary of the Interior, 67
Phil., 451, 463.)
We would only add one word in connection with the participation in the incident of Cabansag's co-appellants, Attys.
Roberto V. Merrera and Rufino V. Merrera. While the conduct of Cabansag may be justified considering that, being a
layman, he is unaware of the technical rules of law and procedure which may place him under the protective mantle of
our constitution, such does not obtain with regard to his co-appellants. Being learned in the law and officers of the
court, they should have acted with more care and circumspection in advising their client to avoid undue
embarrassment to the court or unnecessary interference with the normal course of its proceedings. Their duty as
lawyers is always to observe utmost respect to the court and defend it against unjust criticism and clamor. Had they
observed a more judicious behavior, they would have avoided the unpleasant incident that had arisen. However, the
record is bereft of any proof showing improper motive on their part, much less bad faith in their actuation. But they
should be warned, as we now do, that a commission of a similar misstep in the future would render them amenable to
a more severe disciplinary action.
Wherefore, the decision appealed from is reversed, without pronouncement as to costs.
Bengzon, Paras, C.J., Padilla, Reyes, A., Labrador, Concepcion, Reyes, J.B.L., Endencia, and Felix, JJ., concur.

United States Supreme Court

GITLOW v. PEOPLE OF STATE OF NEW YORK, (1925)

No. 19
Argued: November 23, 1923 Decided: June 8, 1925
[268 U.S. 652, 653] Messrs. Walter H. Pollak and Walter Nelles, both of New York City, for plaintiff in error.
Messrs. John Caldwell Myers, of New York City, and W. J. Wetherbee and Claude T. Dawes, both of Albany, N.
Y., for the People of the State of New York.

[268 U.S. 652, 654]

Mr. Justice SANFORD delivered the opinion of the Court.

Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of
criminal anarchy. New York Penal Law, 160, 161.1 He was separately tried, convicted, and sentenced to
imprisonment. The judgment was affirmed by the Appellate Division and by the Court of Appeals. People v.
Gitlow, 195 App. Div. 773, 187 N. Y. S. 783; 234 N. Y. 132, 136 N. E. 317; and 234 N. Y. 529, 138 N. E. 438. The
case is here on writ of error to the Supreme Court, to which the record was remitted. 260 U.S. 703 , 43 S. Ct. 163.

The contention here is that the statute, by its terms and as applied in this case, is repugnant to the due process
clause of the Fourteenth Amendment. Its material provisions are:

'Sec. 160. Criminal Anarchy Defined. Criminal anarchy is the doctrine that organized government should be
overthrown by force or violence, or by assessination of the executive head or of any of the executive officials of
government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a
felony.
'Sec. 161. Advocacy of Criminal Anarchy. Any person who:
'1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or
overturning organized government by force or violence, or by assassination of the executive head or of any of the
executive officials of government, or by any unlawful means; or,
'2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper,
document, or written or printed matter in any [268 U.S. 652, 655] form, containing or advocating, advising or
teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means,
...
'Is guilty of a felony and punishable' by imprisonment or fine, or both.
The indictment was in two counts. The first charged that the defendant had advocated, advised and taught the
duty, necessity and propriety of overthrowing and overturning organized government by force, violence and
unlawful means, by certain writings therein set forth entitled 'The Left Wing Manifesto'; the second that he had
printed, published and knowingly circulated and distributed a certain paper called 'The Revolutionary Age,'
containing the writings set forth in the first count advocating, advising and teaching the doctrine that organized
government should be overthrown by force, violence and unlawful means.

The following facts were established on the trial by undisputed evidence and admissions: The defendant is a
member of the Left Wing Section of the Socialist Party, a dissenting branch or faction of that party formed in
opposition to its dominant policy of 'moderate Socialism.' Membership in both is open to aliens as well as
citizens. The Left Wing Section was organized nationally at a conference in New York City in June, 1919,
attended by ninety delegates from twenty different States. The conference elected a National Council, of which
the defendant was a member, and left to it the adoption of a 'Manifesto.' This was published in The
Revolutionary Age, the official organ of the Left Wing. The defendant was on the board of managers of the paper
and was its business manager. He arranged for the printing of the paper and took to the printer the manuscript
of the first issue which contained the Left Wing Manifesto, and also a Communist Program and a Program of the
Left Wing that had been adopted by the conference. Sixteen thousand [268 U.S. 652, 656] copies were printed,
which were delivered at the premises in New York City used as the office of the Revolutionary Age and the head
quarters of the Left Wing, and occupied by the defendant and other officials. These copies were paid for by the
defendant, as business manager of the paper. Employees at this office wrapped and mailed out copies of the
paper under the defendant's direction; and copies were sold from this office. It was admitted that the defendant
signed a card subscribing to the Manifesto and Program of the Left Wing, which all applicants were required to
sign before being admitted to membership; that he went to different parts of the State to speak to branches of the
Socialist Party about the principles of the Left Wing and advocated their adoption; and that he was responsible
for the Manifesto as it appeared, that 'he knew of the publication, in a general way and he knew of its publication
afterwards, and is responsible for the circulation.'

There was no evidence of any effect resulting from the publication and circulation of the Manifesto.

No witnesses were offered in behalf of the defendant.

Extracts from the Manifesto are set forth in the margin. 2 Coupled with a review of the rise of Socialism, it [268
U.S. 652, 657] condemned the dominant 'moderate Socialism' for its recognition of the necessity of the
democratic parliamentary state; repudiated its policy of introducing Socialism by legislative measures; and
advocated, in plain and unequivocal language, the necessity of accomplishing the 'Communist Revolution' by a
militant and 'revolutionary Socialism,' based on 'the class struggle' and mobilizing [268 U.S. 652, 658] the 'power
of the proletariat in action,' through mass industrial revolts developing into mass political strikes and
'revolutionary mass action,' for the purpose of conquering and destroying the parliamentary state and
establishing in its place, through a 'revoluntionary dictatorship of the proletariat,' the system of Communist
Socialism. The then recent strikes in Seattle and Winnepeg3 were cited as instances of a development already
verging on revolutionary action and suggestive of proletarian [268 U.S. 652, 659] dictatorship, in which the
strike-workers were 'trying to usurp the functions of municipal government'; and revolutionary Socialism, it was
urged, must use these mass industrial revolts to broaden the strike, make it general and militant, and develop it
into mass political strikes and revolutionary mass action for the annihilation of the parliamentary state.

At the outset of the trial the defendant's counsel objected to the introduction of any evidence under the[268 U.S.
652, 660] indictment on the grounds that, as a matter of law, the Manifesto 'is not in contravention of the
statute,' and that 'the statute is in contravention of' the due process clause of the Fourteenth Amendment. This
objection was denied. They also moved, at the close of the evidence, to dismiss the indictment and direct an
acquittal 'on the grounds stated in the first objection to evidence,'[268 U.S. 652, 661] and again on the grounds
that 'the indictment does not charge an offense' and the evidence 'does not show an offense.' These motions were
also denied.

The court, among other things, charged the jury, in substance, that they must determine what was the intent,
purpose and fair meaning of the Manifesto; that its words must be taken in their ordinary meaning, as they
would be understood by people whom it might reach; that a mere statement or analysis of social and economic
facts and historical incidents, in the nature of an essay, accompanied by prophecy as to the future course of
events, but with no teaching, advice or advocacy of action, would not constitute the advocacy, advice or teaching
of a doctrine for the overthrow of government within the meaning of the statute; that a mere statement that
unlawful acts might accomplish such a purpose would be insufficient, unless there was a teaching, advising the
advocacy of employing such unlawful acts for the purpose of overthrowing government; and that if the jury had a
reasonable doubt that the Manifesto did teach, advocate or advise the duty, necessity or propriety of using
unlawful means for the overthrowing of organized government, the defendant was entitled to an acquittal.
The defendant's counsel submitted two requests to charge which embodied in substance the statement that to
constitute criminal anarchy within the meaning of the statute it was necessary that the language used or
published should advocate, teach or advise the duty, necessity or propriety of doing 'some definite or immediate
act or acts' or force, violence or unlawfulness directed toward the overthrowing of organized government. These
were denied further than had been charged. Two other requests to charge embodied in substance the statement
that to constitute guilt the language used or published must be 'reasonably and ordinarily calculated to incite
certain persons' to acts of force, violence or unlawfulness, [268 U.S. 652, 662] with the object of overthrowing
organized government. These were also denied.

The Appellate Division, after setting forth extracts from the Manifesto and referring to the Left Wing and
Communist Programs published in the same issue of the Revolutionary Age, said:4

'It is perfectly plain that the plan and purpose advocated ... contemplate the overthrow and destruction of the
governments of the United States and of all the States, not by the free action of the majority of the people
through the ballot box in electing representatives to authorize a change of government by amending or changing
the Constitution, ... but by immediately organizing the industrial proletariat into militant Socialist unions and at
the earliest opportunity through mass strike and force and violence, if necessary, compelling the government to
cease to function, and then through a proletarian dictatorship, taking charge of and appropriating all property
and administering it and governing through such dictatorship until such time as the proletariat is permitted to
administer and govern it. ... The articles in question are not a discussion of ideas and theories. They advocate a
doctrine deliberately determined upon and planned for militantly disseminating a propaganda advocating that it
is the duty and necessity of the proletariat engaged in industrial pursuits to organize to such an extent that, by
massed strike, the wheels of government may ultimately be stopped and the government overthrown. ...'
The Court of Appeals held that the Manifesto 'advocated the overthrow of this government by violence, or by
unlawful means.' 5 In one of the opinions representing [268 U.S. 652, 663] the views of a majority of the court,6
it was said:

'It will be seen ... that this defendant through the Manifesto ... advocated the destruction of the state and the
establishment of the dictatorship of the proletariat. ... To advocate ... the commission of this conspiracy or action
by mass strike whereby government is cripped, the administration of justice paralyzed, and the health, morals
and welfare of a community endangered, and this for the purpose of bringing about a revolution in the state, is to
advocate the overthrow of organized government by unlawful means.'
In the other7 it was said:

'As we read this Manifesto ... we feel entirely clear that the jury were justified in rejecting the view that it was a
mere academic and harmless discussion of the advantages of communism and advanced socialism' and 'in
regarding it as a justification and advocacy of action by one class which would destory the rights of all other
classes and overthrow the state itself by use of revolutionary mass strikes. It is true that there is no advocacy in
specific terms of the use of ... force or violence. There was no need to be. Some things are so commonly incident
to others that they do not need to be mentioned when the underlying purpose is described.'
And both the Appellate Division and the Court of Appeals held the statute constitutional.

The specification of the errors relied on relates solely to the specific rulings of the trial court in the matters
hereinbefore set out. 8 The correctness of the verdict is not [268 U.S. 652, 664] questioned, as the case was
submitted to the jury. The sole contention here is, essentially, that as there was no evidence of any concrete
result flowing from the publication of the Manifesto or of circumstances showing the likelihood of such result,
the statute as construed and applied by the trial court penalizes the mere utterance, as such, of 'doctrine' having
no quality of incitement, without regard either to the circumstances of its utterance or to the likelihood of
unlawful sequences; and that, as the exercise of the right of free expression with relation to government is only
punishable 'in circumstances involving likelihood of substantive evil,' the statute contravenes the due process
clause of the Fourteenth Amendment. The argument in support of this contention rests primarily upon the
following propositions: 1st, That the 'liberty' protected by the Fourteenth Amendment includes the liberty of
speech and of the press; and 2d, That while liberty of expression 'is not absolute,' it may be restrained 'only in
circumstances where its exercise bears a causal relation with some substantive evil, consummated, attempted or
likely,' and as the statute 'takes no account of circumstances,' it unduly restrains this liberty and is therefore
unconstitutional.

The precise question presented, and the only question which we can consider under this writ of error, then is,
whether the statute, as construed and applied in this case, by the State courts, deprived the defendant of his
liberty of expression in violation of the due process clause of the Fourteenth Amendment.

The statute does not penalize the utterance or publication of abstract 'doctrine' or academic discussion having no
quality of incitement to any concrete action. It is not aimed against mere historical or philosophical essays. It
does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it
prohibits is language advocating, advising or teaching [268 U.S. 652, 665] the overthrow of organized
government by unlawful means. These words imply urging to action. Advocacy is defined in the Century
Dictionary as: '1. The act of pleading for, supporting, or recommending; active espousal.' It is not the abstract
'doctrine' of overthrowing organized government by unlawful means which is denounced by the statute, but the
advocacy of action for the accomplishment of that purpose. It was so construed and applied by the trial judge,
who specifically charged the jury that:

'A mere grouping of historical events and a prophetic deduction from them would neither constitute advocacy,
advice or teaching of a doctrine for the overthrow of government by force, violence or unlawful means. [And] if it
were a mere essay on the subject, as suggested by counsel, based upon deductions from alleged historical events,
with no teaching, advice or advocacy of action, it would not constitute a violation of the statute. ...'
The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere
prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an inevitable
process of evolution in the economic system. It advocates and urges in fervent language mass action which shall
progressively foment industrial disturbances and through political mass strikes and revolutionary mass action
action overthrow and destroy organized parliamentary government. It concludes with a call to action in these
words:

'The proletariat revolution and the Communist reconstruction of society-the struggle for these-is now
indispensable. ... The Communist International calls the proletariat of the world to the final struggle!'
This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of
direct incitement.

The means advocated for bringing about the destruction of organized parliamentary government, namely, mass
industrial [268 U.S. 652, 666] revolts usurping the functions of municipal government, political mass strikes
directed against the parliamentary state, and revolutionary mass action for its final destruction, necessarily
imply the use of force and violence, and in their essential nature are inherently unlawful in a constitutional
government of law and order. That the jury were warranted in finding that the Manifesto advocated not merely
the abstract doctrine of overthrowing organized government by force, violence and unlawful means, but action to
that end, is clear.

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the
First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties'
protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not
regard the incidental statement in Prudential Ins. Co. v. Cheek,259 U.S. 530, 543 , 42 S. Ct. 516, 27 A. L. R. 27,
that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as
determinative of this question. 9

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by
the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may
choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and
prevents the punishment of those who abuse this freedom. 2 Story on the Constitution ( 5th Ed.) 1580, p. 634;
Robertson v. Baldwin, 165 U.S. 275, 281 , 17 S. Ct. 326; Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10
Ann. Cas. 689; Fox v. Washington, 236[268 U.S. 652, 667] U. S. 273, 276, 35 S. Ct. 383; Schenck v. United
States, 249 U.S. 47, 52 , 39 S. Ct. 247; Frohwerk v. United States, 249 U.S. 204, 206 , 39 S. Ct. 249; Debs v. United
States, 249 U.S. 211, 213 , 39 S. Ct. 252; Schaefer v. United States, 251 U.S. 466, 474 , 40 S. Ct. 259; Gilbert v.
Minnesota,254 U.S. 325, 332 , 41 S. Ct. 125; Warren v. United States, 183 F. 718, 721, 106 C. C. A. 156, 33 L. R. A.
(N. S.) 800. Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege
in a free government; without such limitation, it might become the scourge of the republic.

That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical
to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to
question. Robertson v. Baldwin, supra, p. 281 (17 S. Ct. 326); Patterson v. Colorado, supra, p. 462 (27 S. Ct. 556);
Fox v. Washington, supra, p. 277 (35 S. Ct. 383); Gilbert v. Minnesota, supra, p. 339 (41 S. Ct. 125); People v.
Most, 171 N. Y. 423, 431, 64 N. E. 175, 58 L. R. A. 509; State v. Holm, 139 Minn. 267, 275, 166 N. W. 181, L. R. A.
1918C, 304; State v. Hennessy, 114 Wash. 351, 359, 195 P. 211; State v. Boyd, 86 N. J. Law, 75, 79, 91 A. 586; State
v. McKee, 73 Conn. 18, 27, 46 A. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124. Thus it was held by this Court in the
Fox Case, that a State may punish publications advocating and encouraging a breach of its criminal laws; and, in
the Gilbert Case, that a State may punish utterances teaching or advocating that its citizens should not assist the
United States in prosecuting or carrying on war with its public enemies.

And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized
government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional
State. Freedom of speech and press, said Story, supra, does not protect disturbances to the public peace or the
attempt to subvert the government. It does not protect publications or teachings which tend to subvert or imperil
the government or to impede or hinder it in the performance of its governmental duties. State v. [268 U.S. 652,
668] Holm, supra, p. 275 (166 N. W. 181). It does not protect publications prompting the overthrow of
government by force; the punishment of those who publish articles which tend to destroy organized society being
essential to the security of freedom and the stability of the state. People v. Most, supra, pp. 431, 432 (64 N. E.
175). And a State may penalize utterances which openly advocate the overthrow of the representative and
constitutional form of government of the United States and the several States, by violence or other unlawful
means. People v. Lloyd, 304 Ill. 23, 34, 136 N. E. 505. See, also, State v. Tachin, 92 N. J. Law, 269, 274, 106 A.
145, and People v. Steelik, 187 Cal. 361, 375, 203 P. 78. In short this freedom does not deprive a State of the
primary and essential right of self preservation; which, so long as human governments endure, they cannot be
denied. Turner v. Williams, 194 U.S. 279, 294 , 24 S. Ct. 719. In Toledo Newspaper Co. v. United States, 247 U.S.
402, 419 , 38 S. Ct. 560, 564 (62 L. Ed. 1186), it was said:

'The safeguarding and fructification of free and constitutional institutions is the very basis and mainstay upon
which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the
right virtually to destroy such institutions.'
By enacting the present statute the State has determined, through its legislative body, that utterances advocating
the overthrow of organized government by force, violence and unlawful means, are so inimical to the general
welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power.
That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the
statute. Mugler v. Kansas, 123 U.S. 623, 661 , 8 S. Ct. 273. And the case is to be considered 'in the light of the
principle that the State is primarily the judge of regulations required in the interest of public safety and welfare';
and that its police 'statutes may only be declared unconstitutional where they are arbitrary or unreasonable [268
U.S. 652, 669] attempts to exercise authority vested in the State in the public interest.' Great Northern Ry. v.
Clara City, 246 U.S. 434, 439 , 38 S. Ct. 346, 347 ( 62 L. Ed. 817). That utterances inciting to the overthrow of
organized government by unlawful means, present a sufficient danger of substantive evil to bring their
punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve
danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate
revolution. And the immediate danger is none the less real and substantial, because the effect of a given
utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from
every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that,
smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State
is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect
the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or
blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own
peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent
and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened
danger in its incipiency. In People v. Lloyd, supra, p. 35 (136 N. E. 512), it was aptly said:

'Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow
the government without waiting until there is a present and imminent danger of the success of the plan
advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to
protect itself would come into being simultaneously with the overthrow of the government, when there [268 U.S.
652, 670] would be neither prosecuting officers nor courts for the enforcement of the law.'
We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State
unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality.

This being so it may be applied to every utterance-not too trivial to be beneath the notice of the law-which is of
such a character and used with such intent and purpose as to bring it within the prohibition of the statute. This
principle is illustrated in Fox v. Washington, supra, p. 277 ( 35 S. Ct. 383); Abrams v. United States, 250 U.S. 616,
624 , 40 S. Ct. 17; Schaefer v. United States, supra, pp. 479, 480 (40 S. Ct. 259); Pierce v. United States, 252 U.S.
239, 250 , 251 S., 40 S. Ct. 205,10 and Gilbert v. Minnesota, supra, p. 333 (41 S. Ct. 125). In other words, when the
legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a
certain kind involve such danger of substantive evil that they may be punished, the question whether any specific
utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not
open to consideration. It is sufficient that the statute itself be constitutional and that the use of the language
comes within its prohibition.

It is clear that the question in such cases is entirely different from that involved in those cases where the statute
merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself,
and it is sought to apply its provisions to language [268 U.S. 652, 671] used by the defendant for the purpose of
bringing about the prohibited results. There, if it be contended that the statute cannot be applied to the language
used by the defendant because of its protection by the freedom of speech or press, it must necessarily be found,
as an original question, without any previous determination by the legislative body, whether the specific
language used involved such likelihood of bringing about the substantive evil as to deprive it of the constitutional
protection. In such case it has been held that the general provisions of the statute may be constitutionally applied
to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the
substantive evil which the legislative body might prevent. Schenck v. United States, supra, p. 51 (39 S. Ct. 247);
Debs v. United States, supra, pp. 215, 216 (39 S. Ct. 252). And the general statement in the Schenck Case, p. 52
(39 S. Ct. 249) that the 'question in every case is whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring about the substantive evils,'-upon
which great reliance is placed in the defendant's argument-was manifestly intended, as shown by the context, to
apply only in cases of this class, and has no application to those like the present, where the legislative body itself
has previously determined the danger of substantive evil arising from utterances of a specified character.

The defendant's brief does not separately discuss any of the rulings of the trial court. It is only necessary to say
that, applying the general rules already stated, we find that none of them involved any invasion of the
constitutional rights of the defendant. It was not necessary, within the meaning of the statute, that the defendant
should have advocated 'some definite or immediate act or acts' of force, violence or unlawfulness. It was
sufficient if such acts were advocated in general terms; and it was not essential that their immediate execution
should [268 U.S. 652, 672] have been advocated. Nor was it necessary that the language should have been
'reasonably and ordinarily calculated to incite certain persons' to acts of force, violence or unlawfulness. The
advocacy need not be addressed to specific persons. Thus, the publication and circulation of a newspaper article
may be an encouragement or endeavor to persuade to murder, although not addressed to any person in
particular. Queen v. Most, L. R. 7 Q. B. D. 244.

We need not enter upon a consideration of the English common law rule of seditious libel or the Federal Sedition
Act of 1798,11 to which reference is made in the defendant's brief. These are so unlike the present statute, that we
think the decisions under them cast no helpful light upon the questions here.

And finding, for the reasons stated, that the statute is not in itself unconstitutional, and that it has not been
applied in the present case in derogation of any constitutional right, the judgment of the Court of Appeals is

AFFIRMED.

Mr. Justice HOLMES (dissenting).

Mr. Justice BRANDEIS and I are of opinion that this judgment should be reversed. The general principle of free
speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has
been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger
latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern
the laws of the United States. If I am right then I think that the criterion sanctioned by the full Court in Schenck
v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247, 249 (63 L. Ed. 470), applies:

'The question in every case is whether the words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive [268 U.S. 652, 673] evils that [the
State] has a right to prevent.'
It is true that in my opinion this criterion was departed from in Abrams v. United States, 250 U.S. 616 , 40 S. Ct.
17, but the convictions that I expressed in that case are too deep for it to be possible for me as yet to believe that
it and Schaefer v. United States, 251 U.S. 466 , 40 S. Ct. 259, have settled the law. If what I think the correct test is
applied it is manifest that there was no present danger of an attempt to overthrow the government by force on
the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was
more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed
it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The
only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's
enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant
discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in
proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning
of free speech is that they should be given their chance and have their way.

If the publication of this document had been laid as an attempt to induce an uprising against government at once
and not at some indefinite time in the future it would have presented a different question. The object would have
been one with which the law might deal, subject to the doubt whether there was any danger that the publication
could produce any result, or in other words, whether it was not futile and too remote from possible
consequences. But the indictment alleges the publication and nothing more.

Footnotes
[ Footnote 1 ] Laws 1909, c. 88; Consol. Laws 1909, c. 40. This statute was originally enacted in 1902. Laws 1902,
c. 371.

[ Footnote 2 ] Italics are given as in the original, but the paragraphing is omitted.

'The Left Wing Manifesto.*

'Issued on Authority of the Conference by the National Council of the Left Wing.
'The world is in crisis. Capitalism, the prevailing system of society, is in process of disintegration and collapse. ...
Humanity can be saved from its last excesses only by the Communist Revolution. There can now be only the
Socialism which is one in temper and purpose with the proletarian revolutionary struggle. ... The class struggle is
the heart of Socialism. Without strict conformity to the class struggle, in its revolutionary implications, Socialism
becomes either sheer Utopianism, or a method of reaction. ... The dominant Socialism united with the capitalist
governments to prevent a revolution. The Russian Revolution was the first act of the proletariat against the war
and Imperialism. ... [The] proletaiat, urging on the poorer peasantry, conquered power. It accomplished a
proletarian revolution by means of the Bolshevik policy of 'all power to the Soviets,'-organizing the new
transitional state of proletarian dictatorship. ... Moderate Socialism affirms that the bourgeois, democratic
parliamentary state is the necessary basis for the introduction of Socialism. ... Revolutionary Socialism, on the
contrary, insists that the democratic parliamentary state can never be the basis for the introduction of Socialism;
that it is necessary to destroy the parliamentary state, and construct a new state of the organized producers,
which will deprive the bourgeoisie of political power, and function as a revolutionary dictatorship of the
proletariat. ... Revolutionary Socialism alone is capable of mobilizing the proletariat for Socialism, for the
conquest of the power of the state, by means of revolutionary mass action proletarian dictatorship. ...
Imperialism is dominant in the United States, which is now a world power. ... The war
has aggrandized American Capitalism, instead stead of weakening it as in Europe. ... These conditions modify
our immediate task, but do not alter its general character; this is not the moment of revolution, but it is the
moment of revolutionary struggle. ... Strikes are developing which verge on revolutionary action, and which the
suggestion of proletarian dictatorship is apparent, the striker-workers trying to usurp functions of municipal
government, as in Seattle and Winnipeg. The mass struggle of the proletariat is coming into being. ... These
strikes will constitute the determining feature of proletarian action in the days to come. Revolutionary Socialism
must use these mass industrial revolts to broaden the strike, to make it general and militant; use the strike for
political objectives, and, finally, develop the mass political strike against Capitalism and the state. Revolutionary
Socialism must base itself on the mass struggles of the proletariat, engage directly in these struggles while
emphasizing the revolutionary purposes of Socialism and the proletarian movement. The mass strikes of the
American proletariat provide the material basis out of which to develop the concepts and action of revolutionary
Socialism. ... Our task ... is to articulate and organize the mass of the unorganized industrial proletariat, which
constitutes the basis for a militant Socialism. The struggle for the revolutionary industrial unionism of the
proletariat becomes an indispensable phase of revolutionary Socialism, on the basis of which to broaden and
deepen the action of the militant proletariat, developing reserves for the ultimate conquest of power. ...
Revolutionary Socialism adheres to the class struggle because through the class struggle alone-the mass struggle-
can the industrial proletariat secure immediate concessions and finally conquer power by organizing the
industrial government of the working class. The class struggle is a political struggle ... in the sense that its
objective is political-the overthrow of the political organization upon which capitalistic exploitation depends, and
the introduction of a new social system. The direct objective is the conquest by the proletariat of the power of the
state. Revolutionary Socialism does not propose to 'capture' the bourgeois parliamentary state, but to conquer
and destroy it. Revolutionary Socialism, accordingly, repudiates the policy of introducing Socialism by means of
legislative measures on the basis of the bourgeois state. ... It proposes to conquer by means of political action ...
in the revolutionary Marxian sense, which does not simply mean parliamentarism, but the class action of the
proletariat in any form having as its objective the conquest of the power of of the state . ... Parliamentary action
which emphasizes the implacable character of the class struggles is an indispensable means of agitation. ... But
parliamentarism cannot conquer the power of the state for the proletariat . ... It is accomplished, not by the
legislative representatives of the proletariat, but by the mass power of the proletariat in action. The supreme
power of the proletariat inheres in the political mass strike, in using the industrial mass power of the proletariat
for political objectives. Revolutionary Socialism, accordingly, recognizes that the supreme form of proletarian
political action is the political mass strike . ... The power of the proleatariat lies fundamentally in its control of
the industrial process. The mobilization of this control in action against the burgeois state and Capitalism means
the end of Capitalism, the initial form of the revolutionary mass action that will conquer the power of the state. ...
The revolution starts with strikes of protest, developing into mass political strikes and then into revolutionary
mass action for the conquest of the power of the state. Mass action becomes political in purpose while extra-
parliamentary in form; it is equally a process of revolution and the

revolution itself in operation. The final objective of mass action is the conquest of the power of the state, the
annihilation of the bourgeois parliamentary state and the introduction of the transition proletarian state,
functioning as a revolutionary dictatorship of the proletariat . ... The bourgeois parliamentary state is the organ
of the bourgeoisie for the coercion of the proletariat. The revolutionary proletariat must, accordingly, destroy this
state. ... It is therefore necessary that the proletariat organize its own state for the coercion and suppression of
the bourgeoisie. ... Proletarian dictatorship is a recognition of the necessity for a revolutionary state to coerce and
suppress the bourgeoisie; it is equally a recognition of the fact that, in the Communist reconstruction of society,
the proletariat as a class alone counts. ... The old machinery of the state cannot be used by the revolutionary
proletariat. It must be destroyed. The proletariat creates a new state, based directly upon the industrially
organized producers, upon the industrial unions or Soviets, or a combination of both. It is that state alone,
functioning as a dictatorship of the proletariat, that can realize Socialism. ... While the dictatorship of the
proletariat proforms its negative task of crushing the old order, it performs the positive task of constructing the
new. Together with the government of the proletarian dictatorship, there is developed a new 'government,' which
is no longer government in the old sense, since it concerns itself with the management of production and not
with the government of persons. Out of workers' control of industry, introduced by the proletarian dictatorship,
there develops the complete structure of Communist Socialism,-industrial self- government of the
communistically organized producers. When this structure is completed, which implies the complete
expropriation of the bourgeoisie economically and politically, the dictatorship of the proletariat ends, in its place
coming the full and free social and individual autonomy of the Communist order. ... It is not a problem of
immediate revolution. It is a problem of the immediate revolutionary struggle. The revolutionary epoch of the
final struggle against Capitalism may last for years and tens of years; but the communist International offers a
policy and program immediate and ultimate in scope, that provides for the immediate class struggle against
Capitalism, in its revolutionary implications, and for the final act of the conquest of power. The old order is in
decay. Civilization is in collapse. The proletarian revolution and the Communist reconstruction of society-the
struggle for these-is now indispensable. This is the message of the Communist International to the workers of the
world. The Communist International calls the proletariat of the world to the final struggle!'

[ Footnote 3 ] There was testimony at the trial that 'there was an extended strike at Winnipeg commencing May
15, 1919, during which the production and supply of necessities, transportation, postal and telegraphic
communication and fire and sanitary protection were suspended or seriously curtailed.'

[ Footnote 4 ] People v. Gitlow, 195 App. Div. 773, 782, 790, 187 N. Y. S. 783, 791.

[ Footnote 5 ] Five judges, constituting the majority of the court, agreed in this view. People v. Gitlow, 234 N. Y.
132, 138, 136 N. E. 317, 320. And the two judges, constituting the minority-who dissented solely on a question as
to the construction of the statute which is not here involved-said in reference to the Manifesto: 'Revolution for
the purpose of overthrowing the present form and the established political system of the United States
government by direct means rather than by constitutional means is therein clearly advocated and defended ...' p.
154 (136 N. E. 326).

[ Footnote 6 ] Pages 141, 142 (136 N. E. 320).

[ Footnote 7 ] Pages 149, 150 (136 N. E. 324).

[ Footnote 8 ] Exceptions to all of these rulings had been duly taken.

[ Footnote 9 ] Compare Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann. Cas. 689; Twining v. New
Jersey, 211 U.S. 78, 108 , 29 S. Ct. 14; Coppage v. Kansas, 236 U.S. 1, 17 , 35 S. Ct. 240, L. R. A. 1915C, 960; Fox v.
Washington, 236 U.S. 273, 276 , 35 S. Ct. 383; Schaefer v. United States, 251 U.S. 466, 474 , 40 S. Ct. 259; Gilbert
v. Minnesota, 254 U.S. 325, 338 , 41 S. Ct. 125; Meyer v. Nebraska,262 U.S. 390, 399 , 43 S. Ct. 625, 29 A. L. R.
1446; 2 Story on the Constitution, 5th Ed., 1950, p. 698.
[ Footnote 10 ] This reference is to so much of the decision as relates to the conviction under the third count. In
considering the effect of the decisions under the Espionage Act of 1917 and the amendment of 1918, the
distinction must be kept in mind between indictments under those provisions which specifically punish certain
utterances, and those which merely punish specified acts in general terms, without specific reference to the use
of language.

COMMUNICATIONS ASSN. v. DOUDS, (1950)

No. 10
Argued: Decided: May 8, 1950
Section 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947,
which imposes certain restrictions on, and denies the benefits of certain provisions of the National Labor
Relations Act to, any labor organization the officers of which have not filed with the National Labor Relations
Board the so-called "non-Communist" affidavits prescribed by 9 (h), is valid under the Federal Constitution. Pp.
385-415.

1. One of the purposes of the Labor Management Relations Act was to remove the obstructions to the free flow of
commerce resulting from "political strikes" instigated by Communists who had infiltrated the management of
labor organizations and were subordinating legitimate trade-union objectives to obstructive strikes when
dictated by Communist Party leaders, often in support of the policies of a foreign government. Pp. 387-389.
2. Section 9 (h) does not merely withhold from noncomplying unions benefits granted by the Government; it also
imposes on them a number of restrictions which would not exist if the National Labor Relations Act had not been
enacted. However, it does not prohibit persons who do not sign the prescribed affidavit from holding union
office. Pp. 389-390.
3. The remedy provided by 9 (h) bears reasonable relation to the evil which it was designed to reach, since
Congress might reasonably find that Communists, unlike members of other political parties, and persons who
believe in the overthrow of the Government by force, unlike persons of other beliefs, represent a continuing
danger of disruptive political strikes when they hold positions of union leadership. Pp. 390-393. [339 U.S. 382,
383]
4. Section 9 (h) is designed to protect the public, not against what Communists and others identified therein
advocate or believe, but against what Congress has concluded they have done and are likely to do again; and the
probable effects of the statute upon the free exercise of the right of speech and assembly must be weighed against
the congressional determination that political strikes are evils of conduct which cause substantial harm to
interstate commerce and that Communists and others identified by 9 (h) pose continuing threats to that public
interest when in positions of union leadership. Pp. 393-400.
5. In view of the complexity of the problem of political strikes and how to deal with their leaders, the public
interest in the good faith exercise of the great powers entrusted by Congress to labor bargaining representatives
under the National Labor Relations Act, the fact that 9 (h) touches only a relatively few persons who combine
certain political affiliations or beliefs with the occupancy of positions of great power over the economy of the
country, and the fact that injury to interstate commerce would be an accomplished fact before any sanctions
could be applied, the legislative judgment that interstate commerce must be protected from a continuing threat
of political strikes is a permissible one in this case. Pp. 400-406.
6. The belief identified in 9 (h) is a belief in the objective of overthrow by force or by any illegal or
unconstitutional methods of the Government of the United States as it now exists under the Constitution and
laws thereof. The sole effect of the statute upon one who holds such beliefs is that he may be forced to relinquish
his position as a union leader. So construed, in the light of the circumstances surrounding the problem, 9 (h)
does not unduly infringe freedoms protected by the First Amendment. Pp. 406-412.
7. Section 9 (h) is not unconstitutionally vague; it does not violate the prohibition of Article I, 9 of the
Constitution against bills of attainder or ex post facto laws; and it does not require a "test oath" contrary to the
provision of Article VI that "no religious Test shall ever be required as a Qualification to any Office or public
Trust under the United States." Pp. 412-415.
79 F. Supp. 563, 170 F.2d 247, affirmed.

[ Footnote * ] Together with No. 13, United Steelworkers of America et al. v. National Labor Relations Board, on
certiorari to the Court of Appeals for the Seventh Circuit, argued October 11, 1949.

No. 10. Although the officers of appellant union had not filed with the National Labor Relations Board the
affidavit prescribed by 9 (h) of the National Labor [339 U.S. 382, 384] Relations Act, as amended by the Labor
Management Relations Act, 1947, 61 Stat. 136, 146, 29 U.S.C. (Supp. III) 141, 159 (h), appellant, claiming that the
section was unconstitutional, sued to restrain the Board from holding a representation election in a bargaining
unit in which appellant was the employee representative, until a hearing was granted to appellant. The three-
judge district court dismissed the complaint. 79 F. Supp. 563. On appeal to this Court, affirmed, p. 415.

No. 13. On an unfair labor practice complaint filed with the National Labor Relations Board by petitioner unions,
the Board found that the employer had violated the National Labor Relations Act in refusing to bargain on the
subject of pensions; but the Board postponed the effective date of its order compelling the employer to bargain,
pending the unions' compliance with 9 (h). 77 N. L. R. B. 1. The Court of Appeals sustained the Board's action on
both counts. 170 F.2d 247. This Court denied certiorari on the pension issue, 336 U.S. 960 , but granted certiorari
on an issue regarding the constitutionality of 9 (h). 335 U.S. 910 . Affirmed, p. 415.

Victor Rabinowitz argued the cause for appellants in No. 10. With him on the brief was Leonard B. Boudin.
Samuel A. Neuburger was also of counsel.

Thomas E. Harris argued the cause for petitioners in No. 13. With him on the brief were Arthur J. Goldberg and
Frank Donner.

Solicitor General Perlman argued the cause for appellee in No. 10 and respondent in No. 13. With him on the
briefs were Robert L. Stern, Stanley M. Silverberg, Robert N. Denham, David P. Findling, A. Norman Somers,
Mozart G. Ratner and Norton J. Come. [339 U.S. 382, 385]

Briefs of amici curiae supporting appellants in No. 10 were filed by Arthur J. Goldberg, Frank Donner and
Thomas E. Harris for the Congress of Industrial Organizations; and Osmond K. Fraenkel and Jerome Walsh for
the American Civil Liberties Union.

Briefs of amici curiae supporting appellants in No. 10 and petitioners in No. 13 were filed by Robert W. Kenny,
Robert J. Silberstein, Richard F. Watt and Edmund Hatfield for the National Lawyers' Guild; and Allan R.
Rosenberg for the United Electrical, Radio & Machine Workers (C. I. O.).

MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

These cases present for decision the constitutionality of 9 (h) of the National Labor Relations Act, as amended by
the Labor Management Relations Act, 1947. 1 This section, commonly referred to as the non-Communist
affidavit provision, reads as follows: "No investigation shall be made by the [National Labor Relations] Board of
any question affecting commerce concerning the representation of employees, raised by a labor organization
under subsection (c) of this section, no petition under section 9 (e) (1) shall be entertained, and no complaint
shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there
is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period
by each officer of such labor organization and the officers of any national or international labor organization of
which it is an affiliate or [339 U.S. 382, 386] constituent unit that he is not a member of the Communist Party or
affiliated with such party, and that he does not believe in, and is not a member of or supports any organization
that believes in or teaches, the overthrow of the United States Government by force or by any illegal or
unconstitutional methods. The provisions of section 35 A of the Criminal Code shall be applicable in respect to
such affidavits."

In No. 10, the constitutional issue was raised by a suit to restrain the Board from holding a representation
election in a bargaining unit in which appellant union was the employee representative, without permitting its
name to appear on the ballot, and, should the election be held, to restrain the Board from announcing the results
or certifying the victor, until a hearing was granted to appellant. A hearing had been denied because of the
noncompliance with 9 (h). The complaint alleged that this requirement was unconstitutional. Appellee's motion
to dismiss the complaint was granted by the statutory three-judge court, 79 F. Supp. 563 (1948), with one judge
dissenting. Since the constitutional issues were properly raised and substantial, we noted probable jurisdiction.

No. 13 is the outcome of an unfair labor practice complaint filed with the Board by petitioner unions. The Board
found that Inland Steel Company had violated the Labor Relations Act in refusing to bargain on the subject of
pensions. 77 N. L. R. B. 1 (1948). But the Board postponed the effective date of its order compelling the company
to bargain, pending the unions' compliance with 9 (h). Both sides appealed: the company urged that the Act had
been misinterpreted; the unions contended that 9 (h) was unconstitutional and therefore an invalid condition of
a Board order. When the court below upheld the Board on both counts, 170 F.2d 247 (1948), with one judge
dissenting as to 9 (h), both sides filed petitions for certiorari. We denied the petition pertaining [339 U.S. 382,
387] to the pension issue,336 U.S. 960 (1949), but granted the petition directed at the affidavit requirement, 335
U.S. 910(1949), because of the manifest importance of the constitutional issues involved.

I.
The constitutional justification for the National Labor Relations Act was the power of Congress to protect
interstate commerce by removing obstructions to the free flow of commerce. National Labor Relations Board v.
Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). That Act was designed to remove obstructions caused by strikes
and other forms of industrial unrest, which Congress found were attributable to the inequality of bargaining
power between unorganized employees and their employers. It did so by strengthening employee groups, by
restraining certain employer practices, and by encouraging the processes of collective bargaining.

When the Labor Management Relations Act was passed twelve years later, it was the view of Congress that
additional impediments to the free flow of commerce made amendment of the original Act desirable. It was
stated in the findings and declaration of policy that:
"Experience has further demonstrated that certain practices by some labor organizations, their officers, and
members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free
flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted
activities which impair the interest of the public in the free flow of such commerce. The elimination of such
practices is a necessary condition to the assurance of the rights herein guaranteed." 2 [339 U.S. 382, 388]
One such obstruction, which it was the purpose of 9 (h) of the Act to remove, was the so-called "political strike."
Substantial amounts of evidence were presented to various committees of Congress, including the committees
immediately concerned with labor legislation, that Communist leaders of labor unions had in the past and would
continue in the future to subordinate legitimate trade union objectives to obstructive strikes when dictated by
Party leaders, often in support of the policies of a foreign government. And other evidence supports the view that
some union leaders who hold to a belief in violent overthrow of the Government for reasons other than loyalty to
the Communist Party likewise regard strikes and other forms of direct action designed to serve ultimate
revolutionary goals as the primary objectives of labor unions which they control. 3 At the committee hearings,
the incident most fully developed was a strike at the Milwaukee plant of the Allis-Chalmers Manufacturing
Company in 1941, when that plant was producing vital materials for the national defense program. A full hearing
was given not only to company officials, but also to leaders of the international and local unions involved.
Congress heard testimony that the strike had been called solely in obedience to Party orders for the purpose of
starting the "snowballing of strikes" in defense plants. 4

No useful purpose would be served by setting out at length the evidence before Congress relating to the
problem [339 U.S. 382, 389] of political strikes, nor can we attempt to assess the validity of each item of
evidence. It is sufficient to say that Congress had a great mass of material before it which tended to show that
Communists and others proscribed by the statute had infiltrated union organizations not to support and further
trade union objectives, including the advocacy of change by democratic methods, but to make them a device by
which commerce and industry might be disrupted when the dictates of political policy required such action.

II.
The unions contend that the necessary effect of 9 (h) is to make it impossible for persons who cannot sign the
oath to be officers of labor unions. They urge that such a statute violates fundamental rights guaranteed by the
First Amendment: the right of union officers to hold what political views they choose and to associate with what
political groups they will, and the right of unions to choose their officers without interference from
government. 5 The Board has argued, on the other hand, that 9 (h) presents no First Amendment problem
because its sole sanction is the withdrawal from noncomplying unions of the "privilege" of using its facilities.

Neither contention states the problem with complete accuracy. It cannot be denied that the practical effect of
denial of access to the Board and the denial of a place on the ballot in representation proceedings is not merely to
withhold benefits granted by the Government but to impose upon noncomplying unions a number of restrictions
which would not exist if the Board had not been [339 U.S. 382, 390] established. 6 The statute does not, however,
specifically forbid persons who do not sign the affidavit from holding positions of union leadership nor require
their discharge from office. The fact is that 9 (h) may well make it difficult for unions to remain effective if their
officers do not sign the affidavits. How difficult depends upon the circumstances of the industry, the strength of
the union and its organizational discipline. We are, therefore, neither free to treat 9 (h) as if it merely withdraws
a privilege gratuitously granted by the Government, nor able to consider it a licensing statute prohibiting those
persons who do not sign the affidavit from holding union office. The practicalities of the situation place the
proscriptions of 9 (h) somewhere between those two extremes. The difficult question that emerges is whether,
consistently with the First Amendment, Congress, by statute, may exert these pressures upon labor unions to
deny positions of leadership to certain persons who are identified by particular beliefs and political affiliations.

III.
There can be no doubt that Congress may, under its constitutional power to regulate commerce among the
several States, attempt to prevent political strikes and other kinds of direct action designed to burden and
interrupt the free flow of commerce. We think it is clear, in addition, that the remedy provided by 9 (h) bears
reasonable [339 U.S. 382, 391] relation to the evil which the statute was designed to reach. Congress could
rationally find that the Communist Party is not like other political parties in its utilization of positions of union
leadership as means by which to bring about strikes and other obstructions of commerce for purposes of political
advantage, and that many persons who believe in overthrow of the Government by force and violence are also
likely to resort to such tactics when, as officers, they formulate union policy.

The fact that the statute identifies persons by their political affiliations and beliefs, which are circumstances
ordinarily irrelevant to permissible subjects of government action, does not lead to the conclusion that such
circumstances are never relevant. In re Summers, 325 U.S. 561 (1945); Hamilton v. Regents, 293 U.S. 245 (1934).
We have held that aliens may be barred from certain occupations because of a reasonable relation between that
classification and the apprehended evil, Clarke v. Deckebach, 274 U.S. 392 (1927); Pearl Assurance Co. v.
Harrington, 313 U.S. 549 (1941), even though the Constitution forbids arbitrary banning of aliens from the
pursuit of lawful occupations. Truax v. Raich, 239 U.S. 33 (1915); Takahashi v. Fish and Game Commission, 334
U.S. 410 (1948). Even distinctions based solely on ancestry, which we declared "are by their very nature odious to
a free people," have been upheld under the unusual circumstances of wartime. Hirabayashi v. United States,320
U.S. 81 (1943). 7 If accidents of birth and ancestry under some circumstances justify an inference concerning
future conduct, it can hardly be doubted that voluntary affiliations and beliefs justify a similar inference when
drawn by the legislature on the basis of its investigations. [339 U.S. 382, 392]

This principle may be illustrated by reference to statutes denying positions of public importance to groups of
persons identified by their business affiliations. One federal statute, 8 for example, provides that no partner or
employee of a firm primarily engaged in underwriting securities may be a director of a national bank. This Court
noted that the statute is directed "to the probability or likelihood, based on the experience of the 1920's, that a
bank director interested in the underwriting business may use his influence in the bank to involve it or its
customers in securities which his underwriting house has in its portfolio or has committed itself to take." Board
of Governors v. Agnew, 329 U.S. 441, 447 (1947). It was designed "to remove tempting opportunities from the
management and personnel of member banks." Id. at p. 449. There was no showing, nor was one required, that
all employees of underwriting firms would engage in such conduct. Because of their business connections,
carrying as they do certain loyalties, interests and disciplines, those persons were thought to pose a continuing
threat of participation in the harmful activities described above. Political affiliations of the kind here involved, no
less than business affiliations, provide rational ground for the legislative judgment that those persons proscribed
by 9 (h) would be subject to "tempting opportunities" to commit acts deemed harmful to the national economy.
In this respect, 9 (h) is not unlike a host of other statutes which prohibit specified groups of persons from
holding positions of power and public interest because, in the legislative judgment, they threaten to abuse the
trust that is a necessary concomitant of the power of office.

If no more were involved than possible loss of position, the foregoing would dispose of the case. But the
more [339 U.S. 382, 393] difficult problem here arises because, in drawing lines on the basis of beliefs and
political affiliations, though it may be granted that the proscriptions of the statute bear a reasonable relation to
the apprehended evil, Congress has undeniably discouraged the lawful exercise of political freedoms as well.
Stated otherwise, the problem is this: Communists, we may assume, carry on legitimate political activities.
Beliefs are inviolate. Cantwell v. Connecticut, 310 U.S. 296, 303(1940). Congress might reasonably find, however,
that Communists, unlike members of other political parties, and persons who believe in overthrow of the
Government by force, unlike persons of other beliefs, represent a continuing danger of disruptive political strikes
when they hold positions of union leadership. By exerting pressures on unions to deny office to Communists and
others identified therein, 9 (h) undoubtedly lessens the threat to interstate commerce, but it has the further
necessary effect of discouraging the exercise of political rights protected by the First Amendment. Men who hold
union offices often have little choice but to renounce Communism or give up their offices. Unions which wish to
do so are discouraged from electing Communists to office. To the grave and difficult problem thus presented we
must now turn our attention.

IV.
The unions contend that once it is determined that this is a free speech case, the "clear and present danger" test
must apply. See Schenck v. United States, 249 U.S. 47 (1919). But they disagree as to how it should be applied.
Appellant in No. 10 would require that joining the Communist Party or the expression of belief in overthrow of
the Government by force be shown to be a clear and present danger of some substantive evil, since those are the
doctrines affected by the statute. Petitioner [339 U.S. 382, 394] in No. 13, on the other hand, would require a
showing that political strikes, the substantive evil involved, are a clear and present danger to the security of the
Nation or threaten widespread industrial unrest.

This confusion suggests that the attempt to apply the term, "clear and present danger," as a mechanical test in
every case touching First Amendment freedoms, without regard to the context of its application, mistakes the
form in which an idea was cast for the substance of the idea. The provisions of the Constitution, said Mr. Justice
Holmes, "are not mathematical formulas having their essence in their form; they are organic living institutions
transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the
words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United
States, 233 U.S. 604, 610 (1914). Still less should this Court's interpretations of the Constitution be reduced to the
status of mathematical formulas. It is the considerations that gave birth to the phrase, "clear and present
danger," not the phrase itself, that are vital in our decision of questions involving liberties protected by the First
Amendment.

Although the First Amendment provides that Congress shall make no law abridging the freedom of speech, press
or assembly, it has long been established that those freedoms themselves are dependent upon the power of
constitutional government to survive. If it is to survive it must have power to protect itself against unlawful
conduct and, under some circumstances, against incitements to commit unlawful acts. Freedom of speech thus
does not comprehend the right to speak on any subject at any time. The important question that came to this
Court immediately after the First World War was not whether, but how far, the First Amendment permits the
suppression of speech which advocates conduct inimical [339 U.S. 382, 395] to the public welfare. 9 Some
thought speech having a reasonable tendency to lead to such conduct might be punished. Justices Holmes and
Brandeis took a different view. They thought that the greater danger to a democracy lies in the suppression of
public discussion; that ideas and doctrines thought harmful or dangerous are best fought with words. Only,
therefore, when force is very likely to follow an utterance before there is a chance for counter-argument to have
effect may that utterance be punished or prevented. 10 Thus, "the necessity which is essential to a valid
restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger
of some substantive evil which the State [or Congress] constitutionally may seek to prevent . . . ." Mr. Justice
Brandeis, concurring in Whitney v. California, 274 U.S. 357, 373 . By this means they sought to convey the
philosophy that, under the First Amendment, the public has a right to every man's views and every man the right
to speak them. Government may cut him off only when his views are no longer merely views but threaten, clearly
and imminently, to ripen into conduct against which the public has a right to protect itself. [339 U.S. 382, 396]

But the question with which we are here faced is not the same one that Justices Holmes and Brandeis found
convenient to consider in terms of clear and present danger. Government's interest here is not in preventing the
dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action
will result therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce from what
Congress considers to be substantial evils of conduct that are not the products of speech at all. Section 9 (h), in
other words, does not interfere with speech because Congress fears the consequences of speech; it regulates
harmful conduct which Congress has determined is carried on by persons who may be identified by their political
affiliations and beliefs. The Board does not contend that political strikes, the substantive evil at which 9 (h) is
aimed, are the present or impending products of advocacy of the doctrines of Communism or the expression of
belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by
persons who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks
acceptance in the competition of the market. 11 Speech may be fought with speech. Falsehoods and fallacies must
be exposed, not suppressed, unless there is not sufficient time to avert the evil consequences of noxious doctrine
by argument and education. That is the command of the First Amendment. But force may and must be met with
force. Section 9 (h) is designed to protect the public not against what Communists and others identified therein
advocate or believe, but against what Congress has concluded they have done and are likely to do again. [339 U.S.
382, 397]

The contention of petitioner in No. 13 that this Court must find that political strikes create a clear and present
danger to the security of the Nation or of widespread industrial strife in order to sustain 9 (h) similarly
misconceives the purpose that phrase was intended to serve. In that view, not the relative certainty that evil
conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must
be measured by the "test" laid down in the Schenck case. But there the Court said that: "The question in every
case is whether the words used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to prevent." Schenck v.
United States, supra at 52. (Emphasis supplied.)

So far as the Schenck case itself is concerned, imminent danger of any substantive evil that Congress may
prevent justifies the restriction of speech. Since that time this Court has decided that however great the
likelihood that a substantive evil will result, restrictions on speech and press cannot be sustained unless the evil
itself is "substantial" and "relatively serious," Brandeis, J., concurring in Whitney v. California, supra at 374, 377,
or sometimes "extremely serious," Bridges v. California, 314 U.S. 252, 263 (1941). And it follows therefrom that
even harmful conduct cannot justify restrictions upon speech unless substantial interests of society are at stake.
But in suggesting that the substantive evil must be serious and substantial, it was never the intention of this
Court to lay down an absolutist test measured in terms of danger to the Nation. When the effect of a statute or
ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be
protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of
the Nation is an absurdity. We recently dismissed for want of substantiality [339 U.S. 382, 398] an appeal in
which a church group contended that its First Amendment rights were violated by a municipal zoning ordinance
preventing the building of churches in certain residential areas. Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints v. Porterville, 338 U.S. 805 (1949). And recent cases in this Court
involving contempt by publication likewise have no meaning if imminent danger of national peril is the
criterion. 12

On the contrary, however, the right of the public to be protected from evils of conduct, even though First
Amendment rights of persons or groups are thereby in some manner infringed, has received frequent and
consistent recognition by this Court. We have noted that the blaring sound truck invades the privacy of the home
and may drown out others who wish to be heard. Kovacs v. Cooper, 336 U.S. 77 (1949). The unauthorized parade
through city streets by a religious or political group disrupts traffic and may prevent the discharge of the most
essential obligations of local government. Cox v. New Hampshire, 312 U.S. 569, 574 (1941). The exercise of
particular First Amendment rights may fly in the face of the public interest in the health of children, Prince v.
Massachusetts, 321 U.S. 158 (1944), or of the whole community, Jacobson v. Massachusetts, 197 U.S. 11 (1905),
and it may be offensive to the moral standards of the community, Reynolds v. United States, 98 U.S. 145 (1878);
Davis v. Beason, 133 U.S. 333 (1890). And Government's obligation to provide an efficient public service, United
Public Workers v. Mitchell, 330 U.S. 75 (1947), and its interest in the character of members of the bar, In re
Summers, 325 U.S. 561 (1945), sometimes admit of limitations upon rights set out in the First Amendment. And
see Giboney v. Empire Storage Co., [339 U.S. 382, 399] 336 U.S. 490, 499 -501 (1949). We have never held that
such freedoms are absolute. The reason is plain. As Mr. Chief Justice Hughes put it, "Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized society maintaining public order without
which liberty itself would be lost in the excesses of unrestrained abuses." Cox v. New Hampshire, supra at 574.

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting
interests demands the greater protection under the particular circumstances presented. The high place in which
the right to speak, think, and assemble as you will was held by the Framers of the Bill of Rights and is held today
by those who value liberty both as a means and an end indicates the solicitude with which we must view any
assertion of personal freedoms. We must recognize, moreover, that regulation of "conduct" has all too frequently
been employed by public authority as a cloak to hide censorship of unpopular ideas. We have been reminded that
"It is not often in this country that we now meet with direct and candid efforts to stop speaking or publication as
such. Modern inroads on these rights come from associating the speaking with some other factor which the state
may regulate so as to bring the whole within official control." 13

On the other hand, legitimate attempts to protect the public, not from the remote possible effects of noxious
ideologies, but from present excesses of direct, active conduct, are not presumptively bad because they interfere
with and, in some of its manifestations, restrain the exercise of First Amendment rights. Reynolds v. United
States, supra; Prince v. Massachusetts, supra; Cox v. [339 U.S. 382, 400] New Hampshire, supra; Giboney v.
Empire Storage Co., supra. In essence, the problem is one of weighing the probable effects of the statute upon the
free exercise of the right of speech and assembly against the congressional determination that political strikes are
evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified
by 9 (h) pose continuing threats to that public interest when in positions of union leadership. We must,
therefore, undertake the "delicate and difficult task . . . to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights." Schneider
v. State, 308 U.S. 147, 161 (1939).
 V.
The "reasons advanced in support of the regulation" are of considerable weight, as even the opponents of 9 (h)
agreed. They are far from being "[m]ere legislative preferences or beliefs respecting matters of public
convenience [which] may well support regulation directed at other personal activities, but be insufficient to
justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions." 14 It
should be emphasized that Congress, not the courts, is primarily charged with determination of the need for
regulation of activities affecting interstate commerce. This Court must, if such regulation unduly infringes
personal freedoms, declare the statute invalid under the First Amendment's command that the opportunities for
free public discussion be maintained. But insofar as the problem is one of drawing inferences concerning the
need for regulation of particular forms of conduct from conflicting evidence, this Court is in no position to
substitute its judgment as to the necessity or desirability of the statute [339 U.S. 382, 401] for that of Congress.
Cf. United Public Workers v. Mitchell, supra at 95, 102. In Bridges v. California, supra, we said that even
restrictions on particular kinds of utterances, if enacted by a legislature after appraisal of the need, come to this
Court "encased in the armor wrought by prior legislative deliberation." 314 U.S. at 261. Compare Gitlow v. New
York, 268 U.S. 652 (1925). The deference due legislative determination of the need for restriction upon particular
forms of conduct has found repeated expression in this Court's opinions.

When compared with ordinances and regulations dealing with littering of the streets or disturbance of house-
holders by itinerant preachers, the relative significance and complexity of the problem of political strikes and
how to deal with their leaders becomes at once apparent. It must be remembered that 9 (h) is not an isolated
statute dealing with a subject divorced from the problems of labor peace generally. It is a part of some very
complex machinery set up by the Federal Government for the purpose of encouraging the peaceful settlement of
labor disputes. Under the statutory scheme, unions which become collective bargaining representatives for
groups of employees often represent not only members of the union but nonunion workers or members of other
unions as well. Because of the necessity to have strong unions to bargain on equal terms with strong employers,
individual employees are required by law to sacrifice rights which, in some cases, are valuable to them. See J. I.
Case Co. v. Labor Board, 321 U.S. 332 (1944). The loss of individual rights for the greater benefit of the group
results in a tremendous increase in the power of the representative of the group - the union. But power is never
without responsibility. And when authority derives in part from Government's thumb on the scales, the exercise
of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself. [339
U.S. 382, 402] See Graham v. Brotherhood of Locomotive Firemen, 338 U.S. 232 (1949); Steele v. Louisville & N.
R. Co., 323 U.S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210 (1944); Wallace Corp. v.
Labor Board, 323 U.S. 248, 255 (1944); Railway Mail Association v. Corsi, 326 U.S. 88, 94 (1945).

We do not suggest that labor unions which utilize the facilities of the National Labor Relations Board become
Government agencies or may be regulated as such. But it is plain that when Congress clothes the bargaining
representative "with powers comparable to those possessed by a legislative body both to create and restrict the
rights of those whom it represents," 15 the public interest in the good faith exercise of that power is very great.

What of the effects of 9 (h) upon the rights of speech and assembly of those proscribed by its terms? The statute
does not prevent or punish by criminal sanctions the making of a speech, the affiliation with any organization, or
the holding of any belief. But as we have noted, the fact that no direct restraint or punishment is imposed upon
speech or assembly does not determine the free speech question. Under some circumstances, indirect
"discouragements" undoubtedly have the same coercive effect upon the exercise of First Amendment rights as
imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political
parties wear identifying arm-bands, for example, is obviously of this nature.

But we have here no statute which is either frankly aimed at the suppression of dangerous ideas 16 nor one [339
U.S. 382, 403] which, although ostensibly aimed at the regulation of conduct, may actually "be made the
instrument of arbitrary suppression of free expression of views." Hague v. Committee for Industrial
Organization, 307 U.S. 496, 516 (1939). 17 There are here involved none of the elements of censorship or
prohibition of the dissemination of information that were present in the cases mainly relied upon by those
attacking the statute. 18 The "discouragements" of 9 (h) proceed, not against the groups or beliefs identified
therein, but only against the combination of [339 U.S. 382, 404] those affiliations or beliefs with occupancy of a
position of great power over the economy of the country. Congress has concluded that substantial harm, in the
form of direct, positive action, may be expected from that combination. In this legislation, Congress did not
restrain the activities of the Communist Party as a political organization; nor did it attempt to stifle beliefs.
Compare West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). 19 Section 9 (h) touches only a
relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs
completely free from restraint. And it leaves those few who are affected free to maintain their affiliations and
beliefs subject only to possible loss of positions which Congress has concluded are being abused to the injury of
the public by members of the described groups.

We have previously had occasion to consider other statutes and regulations in which the interests involved were,
in large measure, like those now being considered. In United Public Workers v. Mitchell, supra, we upheld [339
U.S. 382, 405] a statute which provided that employees of the Federal Government could not participate in
partisan political activities, concededly a First Amendment right, if they would retain their positions. The
decision was not put upon the ground that government employment is a privilege to be conferred or withheld at
will. For it was recognized that Congress may not "enact a regulation providing that no Republican, Jew or Negro
shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in
missionary work." 330 U.S. at 100. But the rational connection between the prohibitions of the statute and its
objects, the limited scope of the abridgment of First Amendment rights, and the large public interest in the
efficiency of government service, which Congress had found necessitated the statute, led us to the conclusion that
the statute may stand consistently with the First Amendment.

Similarly, in In re Summers, supra, we upheld the refusal of a state supreme court to admit to membership of its
bar an otherwise qualified person on the sole ground that he had conscientious scruples against war and would
not use force to prevent wrong under any circumstances. Since he could not, so the justices of the state court
found, swear in good faith to uphold the state constitution, which requires service in the militia in time of war,
we held that refusal to permit him to practice law did not violate the First Amendment, as its commands are
incorporated in the Due Process Clause of the Fourteenth Amendment. Again, the relation between the
obligations of membership in the bar and service required by the state in time of war, the limited effect of the
state's holding upon speech and assembly, and the strong interest which every state court has in the persons who
become officers of the court were thought sufficient to justify the state action. See also Hamilton v. Regents,
supra. [339 U.S. 382, 406]

It is contended that the principle that statutes touching First Amendment freedoms must be narrowly drawn
dictates that a statute aimed at political strikes should make the calling of such strikes unlawful but should not
attempt to bring about the removal of union officers, with its attendant effect upon First Amendment rights. We
think, however, that the legislative judgment that interstate commerce must be protected from a continuing
threat of such strikes is a permissible one in this case. The fact that the injury to interstate commerce would be
an accomplished fact before any sanctions could be applied, the possibility that a large number of such strikes
might be called at a time of external or internal crisis, and the practical difficulties which would be encountered
in detecting illegal activities of this kind are factors which are persuasive that Congress should not be powerless
to remove the threat, not limited to punishing the act. We recently said that "nothing in the Constitution
prevents Congress from acting in time to prevent potential injury to the national economy from becoming a
reality." North American Co. v. Securities & Exchange Commission, 327 U.S. 686, 711 (1946). While this
statement may be subject to some qualification, it indicates the wide scope of congressional power to keep from
the channels of commerce that which would hinder and obstruct such commerce.

VI.
Previous discussion has considered the constitutional questions raised by 9 (h) as they apply alike to members of
the Communist Party and affiliated organizations and to persons who believe in overthrow of the Government by
force. The breadth of the provision concerning belief in overthrow of the Government by force would raise
additional questions, however, if it were read [339 U.S. 382, 407] very literally to include all persons who might,
under any conceivable circumstances, subscribe to that belief.

But we see no reason to construe the statute so broadly. It is within the power and is the duty of this Court to
construe a statute so as to avoid the danger of unconstitutionality if it may be done in consonance with the
legislative purpose. United States v. Congress of Industrial Organizations, 335 U.S. 106, 120 -121 (1948); United
States v. Delaware & Hudson Co., 213 U.S. 366, 407 -408 (1909). In enacting 9 (h), Congress had as its objective
the protection of interstate commerce from direct interference, not any intent to disturb or proscribe beliefs as
such. Its manifest purpose was to bring within the terms of the statute only those persons whose beliefs strongly
indicate a will to engage in political strikes and other forms of direct action when, as officers, they direct union
activities. The congressional purpose is therefore served if we construe the clause, "that he does not believe in,
and is not a member of or supports any organization that believes in or teaches, the overthrow of the United
States Government by force or by any illegal or unconstitutional methods," to apply to persons and organizations
who believe in violent overthrow of the Government as it presently exists under the Constitution as an objective,
not merely a prophecy. Congress might well find that such persons - those who believe that the present form of
the Government of the United States should be changed by force or other illegal methods - would carry that
objective into their conduct of union affairs by calling political strikes designed to weaken and divide the
American people, whether they consider actual overthrow of the Government to be near or distant. It is to those
persons that 9 (h) is intended to apply, and only to them. We hold, therefore, that the belief identified in 9 (h) is
a belief in the objective of overthrow by force or by any illegal or unconstitutional [339 U.S. 382, 408] methods of
the Government of the United States as it now exists under the Constitution and laws thereof.

As thus construed, we think that the "belief" provision of the oath presents no different problem from that
present in that part of the section having to do with membership in the Communist Party. Of course we agree
that one may not be imprisoned or executed because he holds particular beliefs. But to attack the straw man of
"thought control" is to ignore the fact that the sole effect of the statute upon one who believes in overthrow of the
Government by force and violence - and does not deny his belief - is that he may be forced to relinquish his
position as a union leader. That fact was crucial in our discussion of the statute as it relates to membership in the
Communist Party. To quote, with pertinent substitutions, an apt statement of that principle, post, p. 434: "The
Act does not suppress or outlaw the [belief in overthrow of the Government], nor prohibit it or [those who hold
that belief] from engaging in any aboveboard activity . . . . No individual is forbidden to be or to become a
philosophical [believer in overthrow of Government] or a full-fledged member of [a group which holds that
belief]. No one is penalized for writing or speaking in favor of [such a belief] or its philosophy. Also, the Act does
not require or forbid anything whatever to any person merely because he is [a believer in overthrow of the
Government by force]. It applies only to one who becomes an officer of a labor union."

If the principle that one may under no circumstances be required to state his beliefs on any subject nor suffer the
loss of any right or privilege because of his beliefs be a valid one, its application in other possible situations
becomes relevant. Suppose, for example, that a federal statute provides that no person may become a member of
the Secret Service force assigned to protect the President unless he swears that he does not believe in
assassination [339 U.S. 382, 409] of the President. Is this beyond the power of Congress, whatever the need
revealed by its investigations? An affirmative answer hardly commends itself to reason unless, indeed, the Bill of
Rights has been converted into a "suicide pact." Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (dissenting
opinion). Yet the example chosen is far-fetched only because of the manifest absurdity of reliance upon an oath
in such a situation. One can have no doubt that the screening process in the selection of persons to occupy such
positions probes far deeper than mere oath-taking can possibly do.

To hold that such an oath is permissible, on the other hand, is to admit that the circumstances under which one
is asked to state his belief and the consequences which flow from his refusal to do so or his disclosure of a
particular belief make a difference. The reason for the difference has been pointed out at some length above.
First, the loss of a particular position is not the loss of life or liberty. We have noted that the distinction is one of
degree, and it is for this reason that the effect of the statute in proscribing beliefs - like its effect in restraining
speech or freedom of association - must be carefully weighed by the courts in determining whether the balance
struck by Congress comports with the dictates of the Constitution. But it is inaccurate to speak of 9 (h) as
"punishing" or "forbidding" the holding of beliefs, any more than it punishes or forbids membership in the
Communist Party.

Second, the public interest at stake in ascertaining one's beliefs cannot automatically be assigned at zero without
consideration of the circumstances of the inquiry. If it is admitted that beliefs are springs to action, it becomes
highly relevant whether the person who is asked whether he believes in overthrow of the Government by force is
a general with five hundred thousand men at his command or a village constable. To argue that because the
latter [339 U.S. 382, 410] may not be asked his beliefs the former must necessarily be exempt is to make a fetish
of beliefs. The answer to the implication that if this statute is upheld "then the power of government over beliefs
is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner of
social, economic, moral and political issues," post, p. 438, is that that result does not follow "while this Court
sits." 20 The circumstances giving rise to the inquiry, then, are likewise factors to be weighed by the courts, giving
due weight, of course, to the congressional judgment concerning the need. In short, the problem of balancing the
conflicting individual and national interests involved is no different from the problem presented by proscriptions
based upon political affiliations.

Insofar as a distinction between beliefs and political affiliations is based upon absence of any "overt act" in the
former case, it is relevant, if at all, in connection with problems of proof. In proving that one swore falsely [339
U.S. 382, 411] that he is not a Communist, the act of joining the Party is crucial. Proof that one lied in swearing
that he does not believe in overthrow of the Government by force, on the other hand, must consist in proof of his
mental state. To that extent they differ.
To state the difference, however, is but to recognize that while objective facts may be proved directly, the state of
a man's mind must be inferred from the things he says or does. Of course we agree that the courts cannot
"ascertain the thought that has had no outward manifestation." But courts and juries every day pass upon
knowledge, belief and intent - the state of men's minds - having before them no more than evidence of their
words and conduct, from which, in ordinary human experience, mental condition may be inferred. See 2
Wigmore, Evidence (3d ed.) 244, 256 et seq. False swearing in signing the affidavit must, as in other cases where
mental state is in issue, be proved by the outward manifestations of state of mind. In the absence of such
manifestations, which are as much "overt acts" as the act of joining the Communist Party, there can be no
successful prosecution for false swearing. 21

Considering the circumstances surrounding the problem - the deference due the congressional judgment
concerning the need for regulation of conduct affecting interstate commerce and the effect of the statute upon
rights of speech, assembly and belief - we conclude that 9 (h) [339 U.S. 382, 412] of the National Labor Relations
Act, as amended by the Labor Management Relations Act, 1947, does not unduly infringe freedoms protected by
the First Amendment. Those who, so Congress has found, would subvert the public interest cannot escape all
regulation because, at the same time, they carry on legitimate political activities. Cf. Valentine v.
Chrestensen, 316 U.S. 52 (1942). To encourage unions to displace them from positions of great power over the
national economy, while at the same time leaving free the outlets by which they may pursue legitimate political
activities of persuasion and advocacy, does not seem to us to contravene the purposes of the First Amendment.
That Amendment requires that one be permitted to believe what he will. It requires that one be permitted to
advocate what he will unless there is a clear and present danger that a substantial public evil will result
therefrom. It does not require that he be permitted to be the keeper of the arsenal.

VII.
There remain two contentions which merit discussion. One is that 9 (h) is unconstitutionally vague. The other is
that it violates the mandate of Art. I, 9 of the Constitution that "No Bill of Attainder or ex post facto Law shall be
passed."

The argument as to vagueness stresses the breadth of such terms as "affiliated," "supports" and "illegal or
unconstitutional methods." There is little doubt that imagination can conjure up hypothetical cases in which the
meaning of these terms will be in nice question. The applicable standard, however, is not one of wholly
consistent academic definition of abstract terms. It is, rather, the practical criterion of fair notice to those to
whom the statute is directed. The particular context is all important.

The only criminal punishment specified is the application of 35 (A) of the Criminal Code, 18 U.S.C. 1001, which
covers only those false statements made [339 U.S. 382, 413] "knowingly and willfully." The question in any
criminal prosecution involving a non-Communist affidavit must therefore be whether the affiant acted in good
faith or knowingly lied concerning his affiliations, beliefs, support of organizations, etc. And since the
constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an
offense, the nature of which he is given no fair warning, the fact that punishment is restricted to acts done with
knowledge that they contravene the statute makes this objection untenable. As this Court pointed out in United
States v. Ragen, 314 U.S. 513, 524 (1942), "A mind intent upon willful evasion is inconsistent with surprised
innocence." Cf. Omaechevarria v. Idaho, 246 U.S. 343 (1918); Hygrade Provision Co. v. Sherman, 266 U.S.
497 (1925); Screws v. United States, 325 U.S. 91 (1945). Without considering, therefore, whether in other
circumstances the words used in 9 (h) would render a statute unconstitutionally vague and indefinite, we think
that the fact that under 35 (A) of the Criminal Code no honest, untainted interpretation of those words is
punishable removes the possibility of constitutional infirmity.

The unions' argument as to bill of attainder cites the familiar cases, United States v. Lovett, 328 U.S. 303 (1946);
Ex parte Garland, 4 Wall. 333 (1867); Cummings v. Missouri, 4 Wall. 277 (1867). Those cases and this also,
according to the argument, involve the proscription of certain occupations to a group classified according to
belief and loyalty. But there is a decisive distinction: in the previous decisions the individuals involved were in
fact being punished for past actions; whereas in this case they are subject to possible loss of position only
because there is substantial ground for the congressional judgment that their beliefs and loyalties will be
transformed into future conduct. Of course, the history of the past conduct is the foundation for the judgment as
to what [339 U.S. 382, 414] the future conduct is likely to be; but that does not alter the conclusion that 9 (h) is
intended to prevent future action rather than to punish past action.

This distinction is emphasized by the fact that members of those groups identified in 9 (h) are free to serve as
union officers if at any time they renounce the allegiances which constituted a bar to signing the affidavit in the
past. Past conduct, actual or threatened by their previous adherence to affiliations and beliefs mentioned in 9 (h),
is not a bar to resumption of the position. In the cases relied upon by the unions on the other hand, this Court
has emphasized that, since the basis of disqualification was past action or loyalty, nothing that those persons
proscribed by its terms could ever do would change the result. See United States v. Lovett, supra, at p. 314;
Cummings v. Missouri, supra, at p. 327. Here the intention is to forestall future dangerous acts; there is no one
who may not, by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the
affidavit. We cannot conclude that this section is a bill of attainder.

In their argument on this point, the unions seek some advantage from references to English history pertinent to
a religious test oath. That experience is written into our Constitution in the following provision of Article VI:
"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all
executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States." It is obvious that not all oaths were abolished; the mere fact that
9 (h) is in oath form hardly rises to the stature of a constitutional objection. All that was forbidden was a
"religious Test." We do not think that the oath [339 U.S. 382, 415] here involved can rightly be taken as falling
within that category.

Clearly the Constitution permits the requirement of oaths by officeholders to uphold the Constitution itself. The
obvious implication is that those unwilling to take such an oath are to be barred from public office. For the
President, a specific oath was set forth in the Constitution itself. Art. II, 1. And Congress has detailed an oath for
other federal officers. 22 Obviously, the Framers of the Constitution thought that the exaction of an affirmation
of minimal loyalty to the Government was worth the price of whatever deprivation of individual freedom of
conscience was involved. All that we need hold here is that the casting of 9 (h) into the mold of an oath does not
invalidate it, if it is otherwise constitutional.

We conclude that 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations
Act, 1947, as herein construed, is compatible with the Federal Constitution and may stand. The judgments of the
courts below are therefore.

Affirmed.
MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK and MR. JUSTICE MINTON took no part in the consideration
or decision of these cases.

Footnotes
[ Footnote 1 ] 61 Stat. 136, 146, 29 U.S.C. (Supp. III) 141, 159 (h), amending the National Labor Relations Act of
1935, 49 Stat. 449, 29 U.S.C. 151 et seq.

[ Footnote 2 ] 29 U.S.C. (Supp. III) 151.

[ Footnote 3 ] A detailed description of the aims and tactics of the Socialist Workers Party, for example, may be
found in the transcript of record in Dunne v. United States, 320 U.S. 790 (1943), certiorari denied. We cite the
record as evidence only and express no opinion whatever on the merits of the case. See record, pp. 267-271, 273-
274, 330-332, 439, 475, 491-492, 495-496, 535, 606, 683-688, 693, 737, 804-805.

[ Footnote 4 ] See Hearings before House Committee on Education and Labor on Bills to Amend and Repeal the
National Labor Relations Act, 80th Cong., 1st Sess. 3611-3615.

[ Footnote 5 ] The First Amendment provides: "Congress shall make no law . . . abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances."

[ Footnote 6 ] For example, a union whose officers do not file an affidavit in compliance with 9 (h) may not enter
into a union shop contract with an employer, as it was free to do before passage of the National Labor Relations
Act. A noncomplying union is excluded from the ballot in representation proceedings. If another union is
certified, the noncomplying union incurs the disabilities of 8 (b) (4) (C) and 303 (a) (3), as it would not have
done prior to 1935. Similarly, certain strikes and boycotts are prohibited to noncomplying unions by 8 (b) (4)
(B), 8 (b) (4) (C) and 8 (b) (4) (D) of the Act.

[ Footnote 7 ] See also Luria v. United States, 231 U.S. 9 (1913); Mackenzie v. Hare, 239 U.S. 299(1915); Lapides v.
Clark, 85 U.S. App. D.C. 101, 176 F.2d 619 (1949).

[ Footnote 8 ] Sections 30 and 32 of the Banking Act of 1933, 48 Stat. 162, 193, 194, as amended, 49 Stat. 684,
709, 12 U.S.C. 77, 78.

[ Footnote 9 ] See Schenck v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 U.S. 204 (1919);
Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Schaefer v. United
States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920); Gitlow v. New York, 268 U.S. 652 (1925).

[ Footnote 10 ] ". . . no danger flowing from speech can be deemed clear and present, unless the incidence of the
evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time
to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the
remedy to be applied is more speech, not enforced silence." Mr. Justice Brandeis, concurring in Whitney v.
California, 274 U.S. 357, 377 (1927).

[ Footnote 11 ] See Mr. Justice Holmes, dissenting in Abrams v. United States, 250 U.S. 616, 630(1919).

[ Footnote 12 ] Bridges v. California, 314 U.S. 252 (1941); Pennekamp v. Florida, 328 U.S. 331 (1946); Craig v.
Harney, 331 U.S. 367 (1947).
[ Footnote 13 ] MR. JUSTICE JACKSON, concurring in Thomas v. Collins, 323 U.S. 516, 547 (1945).

[ Footnote 14 ] Schneider v. State, 308 U.S. 147, 161 (1939).

[ Footnote 15 ] Steele v. Louisville & N. R. Co., 323 U.S. 192, 202 (1944).

[ Footnote 16 ] Cf. cases cited in note 9, supra, and Whitney v. California, 274 U.S. 357 (1927); Fiske v. Kansas, 274
U.S. 380 (1927); Stromberg v. California, 283 U.S. 359 (1931); Near v. Minnesota, 283 U.S. 697 (1931); De Jonge v.
Oregon, 299 U.S. 353 (1937); Herndon v. Lowry, 301 U.S. 242 (1937).

[ Footnote 17 ] Cf. Grosjean v. American Press Co., 297 U.S. 233 (1936); Thomas v. Collins, 323 U.S. 516 (1945).

[ Footnote 18 ] In Cox v. New Hampshire, 312 U.S. 569 (1941), Mr. Chief Justice Hughes, speaking for a
unanimous Court, stated the considerations thought controlling in a number of these cases: "In Lovell v. Griffin,
[ 303 U.S. 444 ], the ordinance prohibited the distribution of literature of any kind at any time, at any place, and
in any manner without a permit from the city manager, thus striking at the very foundation of the freedom of the
press by subjecting it to license and censorship. In Hague v. Committee for Industrial Organization, [ 307 U.S.
496 ], the ordinance dealt with the exercise of the right of assembly for the purpose of communicating views; it
did not make comfort or convenience in the use of streets the standard of official action but enabled the local
official absolutely to refuse a permit on his mere opinion that such refusal would prevent `riots, disturbances or
disorderly assemblage.' The ordinance thus created, as the record disclosed, an instrument of arbitrary
suppression of opinions on public questions. The court said that `uncontrolled official suppression of the
privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.'
In Schneider v. State, [ 308 U.S. 147 ] (p. 163) the ordinance was directed at canvassing and banned unlicensed
communication of any views, or the advocacy of any cause, from door to door, subject only to the power of a
police officer to determine as a censor what literature might be distributed and who might distribute it. In
Cantwell v. Connecticut, [ 310 U.S. 296 ] (p. 305) the statute dealt with the solicitation of funds for religious
causes and authorized an official to determine whether the cause was a religious one and to refuse a permit if he
determined it was not, thus establishing a censorship of religion." 312 U.S. at 577-578.

[ Footnote 19 ] In the Barnette case, the Court was careful to point out that the sole interest of the State was in
securing uniformity of belief by compelling utterance of a prescribed pledge, and that refusal to comply with the
State order resulted in punishment for both parent and child: "The freedom asserted by these appellees does not
bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently
require intervention of the State to determine where the rights of one end and those of another begin. But the
refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so.
Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between
authority and rights of the individual. The State asserts power to condition access to public education on making
a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child.
The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude."
319 U.S. at 630-631.

[ Footnote 20 ] Panhandle Oil Co. v. Knox, 277 U.S. 218, 223 (1928) (dissenting opinion). The words of Mr. Justice
Holmes, while written concerning a very different problem, are well worth rereading in this connection: "It
seems to me that the State Court was right. I should say plainly right, but for the effect of certain dicta of Chief
Justice Marshall which culminated in or rather were founded upon his often quoted proposition that the power
to tax is the power to destroy. In those days it was not recognized as it is today that most of the distinctions of the
law are distinctions of degree. If the States had any power it was assumed that they had all power, and that the
necessary alternative was to deny it altogether. But this Court which so often has defeated the attempt to tax in
certain ways can defeat an attempt to discriminate or otherwise go too far without wholly abolishing the power to
tax. The power to tax is not the power to destroy while this Court sits. The power to fix rates is the power to
destroy if unlimited, but this Court while it endeavors to prevent confiscation does not prevent the fixing of rates.
A tax is not an unconstitutional regulation in every case where an absolute prohibition of sales would be one.
Hatch v. Reardon, 204 U.S. 152, 162 ."

[ Footnote 21 ] While it is true that state of mind is ordinarily relevant only when it is incidental to, and
determines the quality of, some overt act (but cf. Hamilton v. Regents, 293 U.S. 245 (1934); In re Summers, 325
U.S. 561 (1945), the fact must not be overlooked that mental state in such cases is a distinct issue, 2 Wigmore,
Evidence (3d ed.) 244, 266, of which the "over act" may or may not be any proof. For example, the physical facts
surrounding a death by shooting may be as consistent with a finding of accident as of murder. Wilfullness, malice
and premeditation must therefore be proved by evidence wholly apart from the act of shooting.

[ Footnote 22 ] 23 Stat. 22, 5 U.S.C. 16.

MR. JUSTICE FRANKFURTER, concurring in the Court's opinion except as to Part VII.

"Scarcely any political question arises in the United States," observed the perceptive de Tocqueville as early as
1835, "that is not resolved, sooner or later, into a judicial question." 1 Democracy in America 280 (Bradley ed.
1948). And so it was to be expected that the conflict of political ideas now dividing the world more pervasively
than any since this nation was founded would give rise to controversies for adjudication by this Court. [339 U.S.
382, 416] "The judicial Power" with which alone this Court is invested comes into operation only as to issues that
the long tradition of our history has made appropriate for disposition by judges. When such questions are
properly here they are to be disposed of within those strict confines of legal reasoning which laymen too often
deem invidiously technical. This restriction to justiciable issues to be disposed of in the unrhetorical manner of
opinion-writing reflects respect by the judiciary for its very limited, however great, function in the proper
distribution of authority in our political scheme so as to avoid autocratic rule. No doubt issues like those now
before us cannot be completely severed from the political and emotional context out of which they emerge. For
that very reason adjudication touching such matters should not go one whit beyond the immediate issues
requiring decision, and what is said in support of the adjudication should insulate the Court as far as is rationally
possible from the political conflict beneath the legal issues.
The central problem presented by the enactment now challenged is the power of Congress, as part of its
comprehensive scheme for industrial peace, to keep Communists out of controlling positions in labor unions as a
condition to utilizing the opportunities afforded by the National Labor Relations Act, as amended by the Labor
Management Relations Act, 1947. 1 Wrapped up [339 U.S. 382, 417] in this problem are two great concerns of
our democratic society - the right of association for economic and social betterment and the right of association
for political purposes. It is too late in the day to deny to Congress the power to promote industrial peace in all the
far-flung range of interstate commerce. To that end, Congress may take appropriate measures to protect
interstate commerce against disruptive conduct not fairly related to industrial betterment within our democratic
framework. It is one thing to forbid heretical political thought merely as heretical thought. It is quite a different
thing for Congress to restrict attempts to bring about another scheme of society, not through appeal to reason
and the use of the ballot as democracy has been pursued throughout our history, but through an associated effort
to disrupt industry.
Thus stated, it would make undue inroads upon the policy-making power of Congress to deny it the right to
protect the industrial peace of the country by excluding from leadership in trade unions which seek to avail
themselves of the machinery of the Labor Management Relations Act those who are united for action against our
democratic process. This is so not because Congress in affording a facility can subject it to any condition it
pleases. It cannot. Congress may withhold all sorts of facilities for a better life but if it affords them it cannot
make them available in an obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of the
facilities. Congress surely can provide for certain clearly relevant qualifications of responsibility on the part of
leaders of trade unions invoking the machinery of the Labor Management Relations Act. The essential question
now is whether Congress may determine that membership of union officers in the Communist Party creates such
an obvious hazard to the peace-promoting purposes of the Act that access to the machinery [339 U.S. 382, 418] of
the Act may be denied unions which prefer their freedom to have officers who are Communists to their
opportunities under the Act.

When we are dealing with conflicting freedoms, as we are on the issues before us, we are dealing with large
concepts that too readily lend themselves to explosive rhetoric. We are also dealing with matters as to which
different nuances in phrasing the same conclusion lead to different emphasis and thereby eventually may lead to
different conclusions in slightly different situations. From my point of view these are issues as to which it would
be desirable for the members of the Court to write full-length individual opinions. The Court's business in our
time being what it is precludes this. It must suffice for me to say that the judgment of Congress that trade unions
which are guided by officers who are committed by ties of membership to the Communist Party must forego the
advantages of the Labor Management Relations Act is reasonably related to the accomplishment of the purposes
which Congress constitutionally had a right to pursue. To deny that that is a judgment which Congress may, as a
matter of experience, enforce even though it involves the indicated restrictions upon freedom would be to make
naivete a requirement in judges. Since the Court's opinion, in the main, expresses the point of view which I have
very inadequately sketched, I join it except as qualified in what follows.

Congress was concerned with what it justifiably deemed to be the disorganizing purposes of Communists who
hold positions of official power in labor unions, or, at the least, what it might well deem their lack of
disinterested devotion to the basic tenets of the American trade union movement because of a higher loyalty to a
potentially conflicting cause. But Congress did not choose merely to limit the freedom of labor unions which seek
the advantages of the Labor Management Relations Act to[339 U.S. 382, 419] be led by officers who are not
willing to disavow membership in the Communist Party. The scope of its legislation was much more extensive.

Legislation, in order to effectuate its purposes, may deal with radiations beyond the immediate incidence of a
mischief. If a particular mischief is within the scope of congressional power, wide discretion must be allowed to
Congress for dealing with it effectively. It is not the business of this Court to restrict Congress too narrowly in
defining the extent or the nature of remedies. How to curb an evil, what remedies will be effective; the reach of a
particular evil and therefore the appropriate scope of a remedy against it - all these are in the main matters of
legislative policy not open to judicial condemnation. There are, of course, some specific restrictions in devising
remedies. No matter what its notions of policy may be, the Eighth Amendment, for example, bars Congress from
inflicting "cruel and unusual punishments." I do not suppose it is even arguable that Congress could ask for a
disclosure of how union officers cast their ballots at the last presidential election even though the secret ballot is
a relatively recent institution. See Wigmore, The Australian Ballot System 3, 15, 22 (1889). So also Congress
must keep within the contours of the "due process" requirement of the Fifth Amendment, vague as they are. In
order to curb a mischief Congress cannot be so indefinite in its requirements that effort to meet them raises
hazards unfair to those who seek obedience or involves surrender of freedoms which exceeds what may fairly be
exacted. These restrictions on the broad scope of legislative discretion are merely the law's application of the
homely saws that one should not throw out the baby with the bath or burn the house in order to roast the pig.

In my view Congress has cast its net too indiscriminately in some of the provisions of 9 (h). To ask [339 U.S. 382,
420] avowal that one "does not believe in, and is not a member of or supports any organization that believes in .
. . the overthrow of the United States Government . . . by any illegal or unconstitutional methods" is to ask
assurances from men regarding matters that open the door too wide to mere speculation or uncertainty. It is
asking more than rightfully may be asked of ordinary men to take oath that a method is not "unconstitutional" or
"illegal" when constitutionality or legality is frequently determined by this Court by the chance of a single
vote. 2 It does not meet the difficulty to suggest that the hazard of a prosecution for perjury is not great since the
convictions for perjury must be founded on willful falsity. To suggest that a judge might not be justified in
allowing a case to go to a jury, or that a jury would not be justified in convicting, or that, on the possible
happening of these events, an appellate court would be compelled to reverse, or, finally, that resort could be had
to this Court for review on a petition for certiorari, affords safeguards too tenuous to neutralize the danger. See
Musser v. Utah, 333 U.S. 95 . The hazards that were found to be fatal to the legislation under review in Winters v.
New York, 333 U.S. 507 , appear trivial by comparison with what is here involved.

It is not merely the hazard of prosecution for perjury that is dependent on a correct determination as to the
implications of a man's belief or the belief of others with whom he may be associated in an organization
concerned with political and social issues. It should not be assumed that oaths will be lightly taken; fastidiously
scrupulous regard for them should be encouraged. Therefore, it becomes most relevant whether an oath which
Congress asks men to take may or may not be thought to touch[339 U.S. 382, 421] matters that may not be
subjected to compulsory avowal of belief or disbelief. In the uncertainty of the reach of 9 (h), one may withhold
an oath because of conscientious scruples that it covers beliefs whose disclosure Congress could not in terms
exact. If a man has scruples about taking an oath because of uncertainty as to whether it encompasses some
beliefs that are inviolate, the surrender of abstention is invited by the ambiguity of the congressional exaction. As
MR. JUSTICE JACKSON'S opinion indicates, probing into men's thoughts trenches on those aspects of
individual freedom which we rightly regard as the most cherished aspects of Western civilization. The cardinal
article of faith of our civilization is the inviolate character of the individual. A man can be regarded as an
individual and not as a function of the state only if he is protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person. Entry into that citadel can be justified, if at all, only if strictly
confined so that the belief that a man is asked to reveal is so defined as to leave no fair room for doubt that he is
not asked to disclose what he has a right to withhold.

No one could believe more strongly than I do that every rational indulgence should be made in favor of the
constitutionality of an enactment by Congress. I deem it my duty to go to the farthest possible limits in so
construing legislation as to avoid a finding that Congress has exceeded the limits of its powers. See, e. g., United
States v. Lovett, 328 U.S. 303, 318 , 329; Shapiro v. United States, 335 U.S. 1, 36 ; United States v. C. I. O., 335 U.S.
106, 124 , 129.

If I possibly could, to avoid questions of unconstitutionality I would construe the requirements of 9 (h) to be
restricted to disavowal of actual membership in the Communist Party, or in an organization that is in fact a
controlled cover for that Party or of active belief, [339 U.S. 382, 422] as a matter of present policy, in the
overthrow of the Government of the United States by force. But what Congress has written does not permit such
a gloss nor deletion of what it has written. See Yu Cong Eng v. Trinidad,271 U.S. 500 . I cannot deem it within the
rightful authority of Congress to probe into opinions that involve only an argumentative demonstration of some
coincidental parallelism of belief with some of the beliefs of those who direct the policy of the Communist Party,
though without any allegiance to it. To require oaths as to matters that open up such possibilities invades the
inner life of men whose compassionate thought or doctrinaire hopes may be as far removed from any dangerous
kinship with the Communist creed as were those of the founders of the present orthodox political parties in this
country.

The offensive provisions of 9 (h) leave unaffected, however, the valid portions of the section. In 16, Congress has
made express provision for such severance. Since the judgments below were based in part on what I deem
unconstitutional requirements, I cannot affirm but would remand to give opportunity to obey merely the valid
portions of 9 (h).

[ Footnote 1 ] Section 9 (h) requires each officer of a union seeking to invoke the machinery of the Labor
Management Relations Act to submit an affidavit "that he is not a member of the Communist Party or affiliated
with such party, and that he does not believe in, and is not a member of or supports any organization that
believes in or teaches, the overthrow of the United States Government by force or by any illegal or
unconstitutional methods." 61 Stat. 146, 29 U.S.C. (Supp. III) 159 (h). The provisions of what is now 18 U.S.C.
1001, formerly 35 (A) of the Criminal Code, are made applicable in respect to such affidavits.

[ Footnote 2 ] As to the dubious scope of the term "affiliated" in the statute, see Bridges v. Wixon, 326 U.S. 135 .

MR. JUSTICE JACKSON, concurring and dissenting, each in part.

If the statute before us required labor union officers to forswear membership in the Republican Party, the
Democratic Party or the Socialist Party, I suppose all agree that it would be unconstitutional. But why, if it is
valid as to the Communist Party?

The answer, for me, is in the decisive differences between the Communist Party and every other party of any
importance in the long experience of the United States with party government. In order that today's decision may
not be useful as a precedent for suppression of any [339 U.S. 382, 423] political opposition compatible with our
free institutions, I limit concurrence to grounds and distinctions explicitly set forth herein, without which I
should regard this Act as unconstitutional.

To state controlling criteria definitively is both important and difficult, because those Communist Party activities
visible to the public closely resemble those of any other party. Parties, whether in office or out, are often
irresponsible in their use and abuse of freedoms of speech and press. They all make scapegoats of unpopular
persons or classes and make promises of dubious sincerity or feasibility in order to win votes. All parties, when in
opposition, strive to discredit and embarrass the Government of the day by spreading exaggerations and
untruths and by inciting prejudiced or unreasoning discontent, not even hesitating to injure the Nation's prestige
among the family of nations. The Communist Party, at least outwardly, only exaggerates these well-worn political
techniques and many persons are thus led to think of it as just another more radical political party. If it were
nothing but that, I think this legislation would be unconstitutional. There are, however, contradictions between
what meets the eye and what is covertly done, which, in my view of the issues, provide a rational basis upon
which Congress reasonably could have concluded 1 that the Communist Party is something different in fact from
any other substantial party we have known, and hence may constitutionally be treated as something different in
law. [339 U.S. 382, 424]
 I.
From information before its several Committees and from facts of general knowledge, Congress could rationally
conclude that, behind its political party facade, the Communist Party is a conspiratorial and revolutionary junta,
organized to reach ends and to use methods which are incompatible with our constitutional system. A rough and
compressed grouping of this data 2 would permit Congress to draw these important conclusions as to its
distinguishing characteristics. [339 U.S. 382, 425]

1. The goal of the Communist Party is to seize powers of government by and for a minority rather than to acquire
power through the vote of a free electorate. It seeks not merely a change of administration, or of Congress, or
reform legislation within the constitutional framework. Its program is not merely to socialize property more
rapidly and extensively than the other parties are doing. While the difference between other parties in these
matters is largely as to pace, the Communist Party's difference is one of direction.

The Communist program only begins with seizure of government, which then becomes a means to impose upon
society an organization on principles fundamentally opposed to those presupposed by our Constitution. It
purposes forcibly to recast our whole social and political structure after the Muscovite model of police-state
dictatorship. It rejects the entire religious and cultural heritage of Western civilization, as well as the American
economic and political systems. This Communist movement is a belated counter-revolution to the American
Revolution, designed to undo the Declaration of Independence, the Constitution, and our Bill of Rights, and
overturn our system of free, representative self-government.

Goals so extreme and offensive to American tradition and aspiration obviously could not be attained or
approached through order or with tranquility. If, by their better organization and discipline, they were
successful, more candid Communists admit that it would be to an [339 U.S. 382, 426] accompaniment of violence,
but at the same time they disclaim responsibility by blaming the violence upon those who engage in resistance or
reprisal. It matters little by whom the first blow would be struck; no one can doubt that an era of violence and
oppression, confiscations and liquidations would be concurrent with a regime of Communism.

Such goals set up a cleavage among us too fundamental to be composed by democratic processes. Our
constitutional scheme of elections will not settle issues between large groups when the price of losing is to suffer
extinction. When dissensions cut too deeply, men will fight, even hopelessly, before they will submit. 3 And this
is the kind of struggle projected by the Communist Party and inherent in its program. [339 U.S. 382, 427]

2. The Communist Party alone among American parties past or present is dominated and controlled by a foreign
government. It is a satrap party which, to the threat of civil disorder, adds the threat of betrayal into alien hands.

The chain of command from the Kremlin to the American party is stoutly denied and usually invisible, but it was
unmistakably disclosed by the American Communist Party somersaulting in synchronism with shifts in the
Kremlin's foreign policy. Before Munich, Soviet policy was anti-German - "anti-fascist" - and the Communists in
this country were likewise. However, when Stalin concluded a nonaggression pact with Hitler and Nazi Germany
and the Soviet Union became partners in the war, the Communists here did everything within their power to
retard and embarrass the United States' policy of rendering aid short of war to victims of aggression by that evil
partnership. When those partners again fell out and Russian policy once more became anti-German, the
Communists in this country made an abrupt and fierce reversal and were unconscionable in their demands that
American soldiers, whose equipment they had delayed and sabotaged, be sacrificed in a premature second front
to spare Russia. American Communists, like Communists elsewhere in the world, placed Moscow's demand
above every patriotic interest.

By lineage and composition the Communist Party will remain peculiarly susceptible to this alien control. The
entire apparatus of Communism - its grievances, program, propaganda and vocabulary - were evolved for
Eastern and Central Europe, whose social and political conditions bear no semblance to our own. However gifted
may have been the Communist Party's founders and leaders - Marx, Engels, Lenin and Stalin - not one of them
ever lived in America, experienced our conditions, or imbibed the spirit of our institutions. The Communist [339
U.S. 382, 428] Party is not native to this country and its beginnings here were not an effort of Americans to
answer American problems. Nor is it the response to a quest by American political leaders for lessons from
European experiences. As a consequence, the leaders of the American Communist Party have been otherwise
insignificant personalities, without personal political followings or aptitudes for our political methods, adapted
by training only to boring their way into the labor movement, minority groups and coteries of naive and confused
liberals, whose organizations they have captured and discredited and among whom they lie in wait for further
orders.

The Old World may be rich in lessons which our statesmen could consult with advantage. But it is one thing to
learn from or support a foreign power because that policy serves American interests, and another thing to
support American policies because they will serve foreign interests. 4 In each country where the Communists
have seized control, they have so denationalized its foreign policy as to make it a satellite and vassal of the Soviet
Union and enforced a domestic policy in complete conformity with the Soviet pattern, tolerating no deviation in
deference to any people's separate history, tradition or national interests. [339 U.S. 382, 429]

3. Violent and undemocratic means are the calculated and indispensable methods to attain the Communist
Party's goal. It would be incredible naivete to expect the American branch of this movement to forego the only
methods by which a Communist Party has anywhere come into power. In not one of the countries it now
dominates was the Communist Party chosen by a free or contestible election; in not one can it be evicted by any
election. The international police state has crept over Eastern Europe by deception, coercion, coup d'etat,
terrorism and assassination. Not only has it overpowered its critics and opponents; it has usually liquidated
them. The American Communist Party has copied the organizational structure and its leaders have been
schooled in the same technique and by the same tutors.

The American Communists have imported the totalitarian organization's disciplines and techniques,
notwithstanding the fact that this country offers them and other discontented elements a way to peaceful
revolution by ballot. 5 If they can persuade enough citizens, they may not only name new officials and inaugurate
new policies, but, by amendment of the Constitution, they can abolish the Bill of Rights and set up an absolute
government by legal methods. They are given liberties of speech, press and assembly to enable them to present to
the people their proposals and propaganda for peaceful and lawful changes, however extreme. But instead of
resting their case upon persuasion and any appeal inherent in their ideas and principles, the Communist Party
adopts the techniques of a secret cabal - false names, forged passports, code messages, clandestine meetings. To
these it adds occasional terroristic and threatening methods, [339 U.S. 382, 430] such as picketing courts and
juries, political strikes and sabotage.

This cabalism and terrorism is understandable in the light of what they want to accomplish and what they have
to overcome. The Communist program does not presently, nor in foreseeable future elections, commend itself to
enough American voters to be a substantial political force. Unless the Communist Party can obtain some
powerful leverage on the population, it is doomed to remain a negligible factor in the United States. Hence,
conspiracy, violence, intimidation and the coup d'etat are all that keep hope alive in the Communist breast.

4. The Communist Party has sought to gain this leverage and hold on the American population by acquiring
control of the labor movement. All political parties have wooed labor and its leaders. But what other parties seek
is principally the vote of labor. The Communist Party, on the other hand, is not primarily interested in labor's
vote, for it does not expect to win by votes. It strives for control of labor's coercive power - the strike, the sit-
down, the slow-down, sabotage, or other means of producing industrial paralysis. Congress has legalized the
strike as labor's weapon for improving its own lot. But where Communists have labor control, the strike can be
and sometimes is perverted to a party weapon. In 1940 and 1941, undisclosed Communists used their labor
offices to sabotage this Nation's effort to rebuild its own defenses. Disguised as leaders of free American labor,
they were in truth secret partisans of Stalin, who, in partnership with Hitler, was overrunning Europe, sending
honest labor leaders to concentration camps, and reducing labor to slavery in every land either of them was able
to occupy. No other important political party in our history has attempted to use the strike to nullify a foreign or
a domestic policy adopted by those chosen under our representative system. [339 U.S. 382, 431]

This labor leverage, however, usually can be obtained only by concealing the Communist tie from the union
membership. Whatever grievances American workmen may have with American employers, they are too
intelligent and informed to seek a remedy through a Communist Party which defends Soviet conscription of
labor, forced labor camps and the police state. Hence the resort to concealment, and hence the resentment of
laws to compel disclosure of Communist Party ties. The membership is not likely to entrust its bargaining power,
its records, and its treasury to such hands. When it does, the union finds itself a more or less helpless captive of
the Communist Party. Its officers cease to be interested in correcting grievances but seek to worsen and exploit
them; they care less for winning strikes than that they be long, bitter and disruptive. They always follow the
Communist Party line, without even knowing its source or its objectives. The most promising course of the
Communist Party has been the undercover capture of the coercive power of strategic labor unions as a leverage to
magnify its power over the American people.

5. Every member of the Communist Party is an agent to execute the Communist program. What constitutes a
party? Major political parties in the United States have never been closely knit or secret organizations. Anyone
who usually votes the party ticket is reckoned a member, although he has not applied for or been admitted to
membership, pays no dues, has taken no pledge, and is free to vote, speak and act as he wills. Followers are held
together by rather casual acceptance of general principles, the influence of leaders, and sometimes by the
cohesive power of patronage. Membership in the party carries with it little assurance that the member
understands or believes in its principles and none at all that he will take orders from its leaders. One may quarrel
with the party and bolt its candidates and return [339 U.S. 382, 432] again as much a member as those who were
regular. And it is often a source of grief to those who have labored long in the vineyard that late arrivals are taken
into the party councils from other parties without scrutiny. Of course, when party organization is of this
character, there is little ground for inference that all members are committed to party plans or that they are
agents for their execution.

Membership in the Communist Party is totally different. The Party is a secret conclave. Members are admitted
only upon acceptance as reliable and after indoctrination in its policies, to which the member is fully committed.
They are provided with cards or credentials, usually issued under false names so that the identification can only
be made by officers of the Party who hold the code. Moreover, each pledges unconditional obedience to party
authority. Adherents are known by secret or code names. They constitute "cells" in the factory, the office, the
political society, or the labor union. For any deviation from the party line they are purged and excluded.

Inferences from membership in such an organization are justifiably different from those to be drawn from
membership in the usual type of political party. Individuals who assume such obligations are chargeable, on
ordinary conspiracy principles, with responsibility for and participation in all that makes up the Party's program.
The conspiracy principle has traditionally been employed to protect society against all "ganging up" or concerted
action in violation of its laws. No term passes that this Court does not sustain convictions based on that doctrine
for violations of the antitrust laws or other statutes. 6 [339 U.S. 382, 433] However, there has recently entered
the dialectic of politics a cliche used to condemn application of the conspiracy principle to Communists. "Guilt by
association" is an epithet frequently used and little explained, except that it is generally accompanied by another
slogan, "guilt is personal." Of course it is; but personal guilt may be incurred by joining a conspiracy. That act of
association makes one responsible for the acts of others committed in pursuance of the association. It is wholly a
question of the sufficiency of evidence of association to imply conspiracy. There is certainly sufficient evidence
that all members owe allegiance to every detail of the Communist Party program and have assumed a duty
actively to help execute it, so that Congress could, on familiar conspiracy principles, charge each member with
responsibility for the goals and means of the Party.

Such then is the background which Congress could reasonably find as a basis for exerting its constitutional
powers, and which the judiciary cannot disregard in testing them. On this hypothesis we may revert to
consideration of the contention of unconstitutionality of this oath insofar as it requires disclosure of Communist
Party membership or affiliation.

II.
I cannot believe that Congress has less power to protect a labor union from Communist Party domination than it
has from employer domination. This Court has uncompromisingly upheld power of Congress to disestablish
labor unions where they are company-dominated and to eradicate employer influence, even when exerted only
through spoken or written words which any person not the employer would be free to utter. 7

Congress has conferred upon labor unions important rights and powers in matters that affect industry,
transport, [339 U.S. 382, 434] communications, and commerce. And Congress has not now denied any union full
self-government nor prohibited any union from choosing Communist officers. It seeks to protect the union from
doing so unknowingly. And if members deliberately choose to put the union in the hands of Communist officers,
Congress withdraws the privileges it has conferred on the assumption that they will be devoted to the welfare of
their members. It would be strange indeed if it were constitutionally powerless to protect these delegated
functions from abuse and misappropriation to the service of the Communist Party and the Soviet Union. Our
Constitution is not a covenant of nonresistance toward organized efforts at disruption and betrayal, either of
labor or of the country.

Counsel stress that this is a civil-rights or a free-speech or a free-press case. But it is important to note what this
Act does not do. The Act does not suppress or outlaw the Communist Party, nor prohibit it or its members from
engaging in any aboveboard activity normal in party struggles under our political system. It may continue to
nominate candidates, hold meetings, conduct campaigns and issue propaganda, just as other parties may. No
individual is forbidden to be or to become a philosophical Communist or a full-fledged member of the Party. No
one is penalized for writing or speaking in favor of the Party or its philosophy. Also, the Act does not require or
forbid anything whatever to any person merely because he is a member of, or is affiliated with, the Communist
Party. It applies only to one who becomes an officer of a labor union.

I am aware that the oath is resented by many labor leaders of unquestioned loyalty and above suspicion of
Communist connections, indeed by some who have themselves taken bold and difficult steps to rid the labor
movement of Communists. I suppose no one likes to be compelled to exonerate himself from connections he has
never [339 U.S. 382, 435] acquired. I have sometimes wondered why I must file papers showing I did not steal
my car before I can get a license for it. But experience shows there are thieves among automobile drivers, and
that there are Communists among labor leaders. The public welfare, in identifying both, outweighs any affront to
individual dignity.

In weighing claims that any particular activity is above the reach of law, we have a high responsibility to do so in
the light of present-day actualities, not nostalgic idealizations valid for a simpler age. Our own world, organized
for liberty, has been forced into deadly competition with another world, organized for power. We are faced with a
lawless and ruthless effort to infiltrate and disintegrate our society. In cases involving efforts of Congress to deal
with this struggle we are clearly called upon to apply the long-standing rule that an appointive Judiciary should
strike down no act produced by the democratic processes of our representative system unless unconstitutionality
is clear and certain.

I conclude that we cannot deny Congress power to take these measures under the Commerce Clause to require
labor union officers to disclose their membership in or affiliation with the Communist Party.

III.
Congress has, however, required an additional disclaimer, which in my view does encounter serious
constitutional objections. A union officer must also swear that "he does not believe in . . . the overthrow of the
United States Government by force or by any illegal or unconstitutional methods." 8 [339 U.S. 382, 436]

If Congress has power to condition any right or privilege of an American citizen 9 upon disclosure and disavowal
of belief on any subject, it is obviously this one. But the serious issue is whether Congress has power to proscribe
any opinion or belief which has not manifested itself in any overt act. While the forepart of the oath requires
disclosure and disavowal of relationships which depend on overt acts of membership or affiliation, the afterpart
demands revelation and denial of mere beliefs or opinions, even though they may never have matured into any
act whatever or even been given utterance. In fact, the oath requires one to form and express a conviction on an
abstract proposition which many good citizens, if they have thought of it at all, have considered too academic and
remote to bother about.

That this difference is decisive on the question of power becomes unmistakable when we consider measures of
enforcement. The only sanction prescribed, and probably the only one possible in dealing with a false affidavit, is
punishment for perjury. If one is accused of falsely stating that he was not a member of, or affiliated with, the
Communist Party, his conviction would depend upon proof of visible and knowable overt acts or courses of
conduct sufficient to establish that relationship. But if one is accused of falsely swearing that he did not
believe [339 U.S. 382, 437] something that he really did believe, the trial must revolve around the conjecture as
to whether he candidly exposed his state of mind.

The law sometimes does inquire as to mental state, but only so far as I recall when it is incidental to, and
determines the quality of, some overt act in question. From its circumstances, courts sometimes must decide
whether an act was committed intentionally or whether its results were intended, or whether the action taken
was in malice, or after deliberation, or with knowledge of certain facts. But in such cases the law pries into the
mind only to determine the nature and culpability of an act, as a mitigating or aggravating circumstance, and I
know of no situation in which a citizen may incur civil or criminal liability or disability because a court infers an
evil mental state where no act at all has occurred. 10 Our trial processes are clumsy and unsatisfying for inferring
cogitations which are incidental to actions, but they do not even pretend to ascertain the thought that has had no
outward manifestation. Attempts of the courts to fathom modern political meditations of an accused would be as
futile and mischievous as the efforts in the infamous heresy trials of old to fathom religious beliefs.

Our Constitution explicitly precludes punishment of the malignant mental state alone as treason, most serious of
all political crimes, of which the mental state of adherence to the enemy is an essential part. It requires a duly
witnessed overt act of aid and comfort to the enemy. Cramer v. United States, 325 U.S. 1 . It is true that in
England of olden times men were tried for treason for mental indiscretions such as imagining the death of the
king. But our Constitution was intended to end such prosecutions. Only in the darkest periods of human
history [339 U.S. 382, 438] has any Western government concerned itself with mere belief, however eccentric or
mischievous, when it has not matured into overt action; and if that practice survives anywhere, it is in the
Communist countries whose philosophies we loathe.

How far we must revert toward these discredited systems if we are to sustain this oath is made vivid by the
Court's reasoning that the Act applies only to those "whose beliefs strongly indicate a will to engage in political
strikes . . . ." Since Congress has never outlawed the political strike itself, the Court must be holding that
Congress may root out mere ideas which, even if acted upon, would not result in crime. It is a strange paradox if
one may be forbidden to have an idea in mind that he is free to put into execution. But apart from this, efforts to
weed erroneous beliefs from the minds of men have always been supported by the argument which the Court
invokes today, that beliefs are springs to action, that evil thoughts tend to become forbidden deeds. Probably so.
But if power to forbid acts includes power to forbid contemplating them, then the power of government over
beliefs is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner
of social, economic, moral and political issues.

These suggestions may be discounted as fanciful and farfetched. But we must not forget that in our country are
evangelists and zealots of many different political, economic and religious persuasions whose fanatical
conviction is that all thought is divinely classified into two kinds - that which is their own and that which is false
and dangerous. Communists are not the only faction which would put us all in mental strait jackets. Indeed all
ideological struggles, religious or political, are primarily battles for dominance over the minds of people. It is not
to be supposed that the age-old readiness to [339 U.S. 382, 439] try to convert minds by pressure or suppression,
instead of reason and persuasion, is extinct. Our protection against all kinds of fanatics and extremists, none of
whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our
Constitution.

It happens that the belief in overthrow of representative government by force and violence which Congress
conditionally proscribes is one that I agree is erroneous. But "if there is any principle of the Constitution that
more imperatively calls for attachment than any other it is the principle of free thought - not free thought for
those who agree with us but freedom for the thought that we hate." Holmes, J., dissenting in United States v.
Schwimmer, 279 U.S. 644, 654 -55. Moreover, in judging the power to deny a privilege to think otherwise, we
cannot ignore the fact that our own Government originated in revolution and is legitimate only if overthrow by
force may sometimes be justified. That circumstances sometimes justify it is not Communist doctrine but an old
American belief. 11

The men who led the struggle forcibly to overthrow lawfully constituted British authority found moral support by
asserting a natural law under which their revolution was justified, and they broadly proclaimed these beliefs in
the document basic to our freedom. Such sentiments have also been given ardent and rather extravagant [339
U.S. 382, 440] expression by Americans of undoubted patriotism.12 Most of these utterances were directed
against a tyranny which left no way to change by suffrage. It seems to me a perversion of their meaning to quote
them, as the Communists often do, to sanction violent attacks upon a representative government which does
afford such means. But while I think Congress may make it a crime [339 U.S. 382, 441] to take one overt step to
use or to incite violence or force against our Government, I do not see how in the light of our history a mere belief
that one has a natural right under some circumstances to do so can subject an American citizen to prejudice any
more than possession of any other erroneous belief. Can we say that men of our time must not even think about
the propositions on [339 U.S. 382, 442] which our own Revolution was justified? Or may they think, provided
they reach only one conclusion - and that the opposite of Mr. Jefferson's?

While the Governments, State and Federal, have expansive powers to curtail action, and some small powers to
curtail speech or writing, I think neither has any power, on any pretext, directly or indirectly to attempt
foreclosure of any line of thought. Our forefathers found the evils of free thinking more to be endured than the
evils of inquest or suppression. They gave the status of almost absolute individual rights to the outward means of
expressing belief. I cannot believe that they left open a way for legislation to embarrass or impede the mere
intellectual processes by which those expressions of belief are examined and formulated. This is not only because
individual thinking presents no danger to society, but because thoughtful, bold and independent minds are
essential to wise and considered self-government.

Progress generally begins in skepticism about accepted truths. Intellectual freedom means the right to re-
examine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to
doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think
wrongly is serious, but less dangerous than atrophy from not thinking at all. Our Constitution relies on our
electorate's complete ideological freedom to nourish independent and responsible intelligence and preserve our
democracy from that submissiveness, timidity and herd-mindedness of the masses which would foster a tyranny
of mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member to
think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the
function of our Government to keep the citizen from falling into error; it is the function of the [339 U.S. 382,
443] citizen to keep the Government from falling into error. We could justify any censorship only when the
censors are better shielded against error than the censored.

The idea that a Constitution should protect individual nonconformity is essentially American and is the last thing
in the world that Communists will tolerate. Nothing exceeds the bitterness of their demands for freedom for
themselves in this country except the bitterness of their intolerance of freedom for others where they are in
power. 13 An exaction of some profession of belief or nonbelief is precisely what the Communists would enact -
each individual must adopt the ideas that are common to the ruling group. Their whole philosophy is to
minimize man as an individual and to increase the power of man acting in the mass. If any single characteristic
distinguishes our democracy from Communism it is our recognition of the individual as a personality rather than
as a soulless part in the jigsaw puzzle that is the collectivist state.
I adhere to views I have heretofore expressed, whether the Court agreed, West Virginia Board of Education v.
Barnette, 319 U.S. 624 , or disagreed, see dissenting opinion in United States v. Ballard,322 U.S. 78, 92 , that our
Constitution excludes both general and local governments from the realm of opinions and ideas, beliefs and
doubts, heresy and orthodoxy, political, religious or scientific. The right to speak out, or to publish, also [339 U.S.
382, 444] is protected when it does not clearly and presently threaten some injury to society which the
Government has a right to protect. Separate opinion, Thomas v. Collins, 323 U.S. 516 . But I have protested the
degradation of these constitutional liberties to immunize and approve mob movements, whether those mobs be
religious or political, radical or conservative, liberal or illiberal, Douglas v. City of Jeannette, 319 U.S. 157 ;
Terminiello v. Chicago, 337 U.S. 1, 13 , or to authorize pressure groups to use amplifying devices to drown out the
natural voice and destroy the peace of other individuals. Saia v. People of New York, 334 U.S. 558 ; Kovacs v.
Cooper, 336 U.S. 77 . And I have pointed out that men cannot enjoy their right to personal freedom if fanatical
masses, whatever their mission, can strangle individual thoughts and invade personal privacy. Martin v.
Struthers, 319 U.S. 141 , dissent at 166. A catalogue of rights was placed in our Constitution, in my view, to
protect the individual in his individuality, and neither statutes which put those rights at the mercy of officials nor
judicial decisions which put them at the mercy of the mob are consistent with its text or its spirit.

I think that under our system, it is time enough for the law to lay hold of the citizen when he acts illegally, or in
some rare circumstances when his thoughts are given illegal utterance. I think we must let his mind
alone. 14 [339 U.S. 382, 445]

IV.
The task of this Court to maintain a balance between liberty and authority is never done, because new conditions
today upset the equilibriums of yesterday. The seesaw between freedom and power makes up most of the history
of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to
tyranny and back again. The Court's day-to-day task is to reject as false, claims in the name of civil liberty which,
if granted, would paralyze or impair authority to defend existence of our society, and to reject as false, claims in
the name of security which would undermine our freedoms and open the way to oppression. These are the
competing considerations involved in judging any measures which government may take to suppress or
disadvantage its opponents and critics.

I conclude that today's task can only be discharged by holding that all parts of this oath which require disclosure
of overt acts of affiliation or membership in the Communist Party are within the competence of Congress to enact
and that any parts of it that call for a disclosure of belief unconnected with any overt act are beyond its
power. 15

[ Footnote 1 ] Of course, it is not for any member of this Court to express or to act upon any opinion he may have
as to the wisdom, effectiveness or need of this legislation. Our "inquiries, where the legislative judgment is drawn
in question, must be restricted to the issue whether any state of facts either known or which could reasonably be
assumed affords support for it." United States v. Carolene Products Co., 304 U.S. 144, 154 .

[ Footnote 2 ] It is unnecessary to set out a comprehensive compendium of the materials which Congress may or
could have considered, or to review the voluminous evidence before its several Committees, much of which is
already referred to in the Court's opinion. Most of this information would be of doubtful admissibility or
credibility in a judicial proceeding. Its persuasiveness, validity and credibility for legislative purposes are for
Congress, see n. 1. supra. I intimate no opinion as to its sufficiency for purposes of a criminal trial. An
introduction to the literature on the subject may be found in: Cohen and Fuchs, Communism's Challenge and the
Constitution, 34 Cornell L. Q. 182; Moore, The Communist Party of the U.S. A., 39 Am. Pol. Sci. Rev. 31;
Timasheff, The Schneiderman Case - Its Political Aspects, 12 Ford. L. Rev. 209; Note, 32 Georgetown L. J. 405,
411-418; Emerson & Helfeld, Loyalty Among Government Employees, 58 Yale L. J. 1, 61-64; Donovan & Jones,
Program For a Democratic Counter Attack to Communist Penetration of Government Service, 58 Yale L. J. 1211,
1215-1222; and see Notes, 48 Col. L. Rev. 253; 96 U. of Pa. L. Rev. 381; 1 Stanford L. Rev. 85; 23 Notre Dame
Lawyer 577; 34 Va. L. Rev. 439, 450. See also Mills, The New Men of Power (1948) 186-200; Levenstein, Labor
Today and Tomorrow (1945) 159-177; Teller, Management Functions under Collective Bargaining (1947) 401-
410; Smith, Spotlight on Labor Unions (1946) 40-43, 63-67, 79-82; Taft, Economics and Problems of Labor
(1948) 499-501, 722; Saposs, Left Wing Unionism (1926) 48-65; Foster, From Bryan to Stalin (1937) 275-277;
Gitlow, I Confess (1940) 334-395; The Communist in Labor Relations Today (Research Institute of America,
New York, March 28, 1946); Baldwin, Union Administration and Civil Liberties, 248 Annals 54, 59; Labor
Abroad, Dec. 1947, No. 5 (U.S. Dept. of[339 U.S. 382, 425] Labor, Bureau of Labor Statistics) 3; Labor Abroad,
Feb. 1948, No. 6 (U.S. Dept. of Labor, Bureau of Labor Statistics) 1-3; Postwar Labor Movement in Italy, 68
Monthly Labor Review (U.S. Dept. of Labor, Bureau of Labor Statistics) 49. For the story of American political
parties see Binkley, American Political Parties (2d ed., 1945); 2 Bryce, The American Commonwealth (2d ed. rev.
1891); and on the Communist Party, in addition to materials above cited, Odegard and Helms, American Politics
(1938) 795-797.

[ Footnote 3 ] Such is the view of students of Western society, with outlook so opposed as Lord Balfour and
Harold Laski. Balfour wrote: "Our alternating Cabinets, though belonging to different parties, have never
differed about the foundation of society, and it is evident that our whole political machinery presupposes a
people so fundamentally at one that they can afford to bicker; and so sure of their own moderation that they are
not dangerously disturbed by the neverending din of political conflict. May it always be so." Preface to the
World's Classics edition of Bagehot's English Constitution, p. xxiii. Laski commented: "In an interesting passage
[citing the above] Lord Balfour has drawn attention to the fact that the success of the British Constitution in the
Nineteenth Century - it is worth adding the general success of representative government - was built upon an
agreement between parties in the state upon fundamental principles. There was, that is, a kindred outlook upon
large issues; and since fighting was confined to matters of comparative detail, men were prepared to let reason
have its sway in the realm of conflict. For it is significant that in the one realm where depth of feeling was
passionate - Irish home rule - events moved rapidly to the test of the sword; and the settlement made was
effected by violence and not by reason." Laski, Liberty in the Modern State, 238. If we substitute the Civil War for
Irish home rule, these statements become as applicable to the United States as they are to England.

[ Footnote 4 ] To compare attacks against Thomas Jefferson with attacks against the Communist leaders - as
Communists generally do [e. g. Dennis, Let the People Know (1947) 13] - would be meaningful only if his
character and motives were comparable to those of the Communist leaders. When we consider that Jefferson was
the author of Virginia's Statute of Religious Liberty, was war Governor of Virginia, risked his life to sign the
Declaration of Independence, was Secretary of State in President Washington's Cabinet and became President of
the United States through the influence of Alexander Hamilton, it seems sacrilegious to liken Jefferson's motives
in supporting certain phases of French policy with Communist allegiance to the Kremlin.

[ Footnote 5 ] Changes as decisive as those wrought by most revolutions resulted from the election of Jefferson in
1800, Jackson in 1828, Lincoln in 1860. and Roosevelt in 1932.
[ Footnote 6 ] I have taken pains to point out that the whole doctrine of conspiracy and its abuse presents a danger
to the fair administration of justice. Concurring opinion, Krulewitch v. United States,336 U.S. 440, 445 .

[ Footnote 7 ] See cases collected in Thomas v. Collins, 323 U.S. 516, 548 .

[ Footnote 8 ] The Act lays down other requirements for the oath which do not require extended discussion, as, for
example, the clause "is not a member of or supports any organization that believes in or teaches, the overthrow
of the United States Government by force." For reasons set forth in parts I and II, Congress would undoubtedly
have power [339 U.S. 382, 436] to require disclosure of membership in an organization which had the
characteristics of the Communist Party or other characteristics of similar gravity. As drawn, this clause might,
however, apply to membership in a mere philosophical or discussion group.

[ Footnote 9 ] This part of the oath was obviously intended to disclose persons not members of or affiliated with
the Communist Party but who were a part of the undertow of the Communist movement. It was probably
suggested by the long-standing requirement of somewhat similar oaths in immigration and naturalization
matters. There is, however, no analogy between what Congress may require of aliens as a condition of admission
or of citizenship and what it may require of a citizen.

[ Footnote 10 ] See Holmes, The Common Law, Lectures II, III and IV, pp. 65-68, 132 et seq.

[ Footnote 11 ] Nothing is more pernicious than the idea that every radical measure is "Communistic" or every
liberal-minded person a "Communist." One of the tragedies of our time is the confusion between reform and
Communism - a confusion to which both the friends and enemies of reform have contributed, the one by failing
to take a clear stand against Communists and Communism and the other by characterizing even the most
moderate suggestion of reform as "Communistic" and its advocates as "Communists." Unquestioning idolatry of
the status quo has never been an American characteristic.

[ Footnote 12 ] A surprising catalogue of statements could be compiled. The following are selected from Mencken,
A New Dictionary of Quotations, under the rubric "Revolution": "Whenever any government becomes destructive
of these ends [life, liberty and the pursuit of happiness] it is the right of the people to alter or abolish it, and to
institute a new government, laying its foundations on such principles, and organizing its powers in such form, as
to them shall seem most likely to effect their safety and happiness." Thomas Jefferson, The Declaration of
Independence, July 4, 1776. "The community hath an indubitable, inalienable, and indefeasible right to reform,
alter or abolish government, in such manner as shall be by that community judged most conducive to the public
weal." The Pennsylvania Declaration of Rights, 1776. "It is an observation of one of the profoundest inquirers
into human affairs that a revolution of government is the strongest proof that can be given by a people of their
virtue and good sense." John Adams, Diary, 1786. "What country can preserve its liberties if their rulers are not
warned from time to time that their people preserve the spirit of resistance? Let them take arms." Thomas
Jefferson, Letter to W. S. Smith, Nov. 13, 1787. "An oppressed people are authorized whenever they can to rise
and break their fetters." Henry Clay, Speech in the House of Representatives, March 4, 1818. "Any people
anywhere, being inclined and having the power, have the right to rise up and shake off the existing government
and form a new one that suits them better." Abraham Lincoln, Speech in the House of Representatives, 1848.
"All men recognize the right of revolution: that is, the right to refuse allegiance to, and to resist, the government
when its tyranny or its inefficiency are great and unendurable." H. D. Thoreau, An Essay on Civil Disobedience,
1849. "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary
of the existing government they can exercise their constitutional right of amending it, or their revolutionary right
to dismember or overthrow it." Abraham Lincoln, Inaugural Address, March 4, 1861. "Whenever the ends of
government [339 U.S. 382, 441] are perverted, and public liberty manifestly endangered, and all other means of
redress are ineffectual, the people may, and of a right ought to reform the old, or establish a new government; the
doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good
and happiness of mankind." Declaration of Rights of Maryland, 1867. "The right of revolution is an inherent one.
When people are oppressed by their government, it is a natural right they enjoy to relieve themselves of the
oppression, if they are strong enough, either by withdrawal from it, or by overthrowing it and substituting a
government more acceptable." U.S. Grant, Personal Memoirs, I, 1885. Quotations of similar statements could be
multiplied indefinitely. Of course, these quotations are out of their context and out of their times. And despite
their abstract theories about revolt, it should also be noted that Adams, Jefferson, Lincoln and Grant were
uncompromising in putting down any show of rebellion toward the Government they headed. The revolutionary
origin of our own Government has inclined Americans to value revolution as a means to liberty and loosely to
think that all revolutionists are liberals. The fact is, however, that violent revolutions are rare which do more in
the long run than to overthrow one tyranny to make way for another. The cycle from revolt to reaction has taken
less than a score of bloody years in the great revolutions. The Puritan Commonwealth under Cromwell led but to
the Restoration; the French by revolution escaped from the reign of Louis XVI to the dictatorship of Napoleon;
the Russians overthrew the Czar and won the dictatorship of Lenin and Stalin; the Germans deposed the Kaiser
and fell victims of a dictatorship by Hitler. I am convinced that force and violence do not serve the cause of
liberty as well as nonviolence. See Fischer, Gandhi and Stalin, passim. But the sentiments I have quoted have
strong appeal to the impetuous and are deeply imbedded in American tradition.

[ Footnote 13 ] Prime Minister Attlee recently stated: "I constantly get hypocritical resolutions protesting against
alleged infringements of freedom in this country. I get protests because we keep out from places where secret
work is carried on people who cannot be trusted. This from Communists who know that their fellows in
Communist countries carry on a constant purge and ruthlessly remove from office anyone who shows the
slightest sign of deviating from what their rulers consider to be orthodoxy. It is sickening hypocrisy." London
Times Weekly Edition, July 6, 1949.

[ Footnote 14 ] The Court appears to recognize and compound the constitutional weakness of this statute and, to
save this part of the oath from unconstitutionality, declines to read the text "very literally." It renders the Act to
call for disclaimer of belief in forcible overthrow only as an objective but not as a prophecy. And furthermore,
one is allowed to believe in forcible overthrow, even as an objective, so long as the belief does not relate to the
Government "as it now exists." I think we do not make an Act constitutional by making it vague but only
compound its invalidity. Cf. Winters v. New York, 333 U.S. 507 .

[ Footnote 15 ] This conclusion, if it prevailed, would require decision of the effect of partial invalidity on the
whole and the applicability of the severability clause. As it does not prevail, discussion of the question would be
academic.

MR. JUSTICE BLACK, dissenting.

We have said that "Freedom to think is absolute of its own nature; the most tyrannical government is powerless
to control the inward workings of the mind." 1 But people can be, and in less democratic countries have [339 U.S.
382, 446] been, made to suffer for their admitted or conjectured thoughts. Blackstone recalls that Dionysius is
"recorded to have executed a subject, barely for dreaming that he had killed him; which was held for a sufficient
proof, that he had thought thereof in his waking hours." 2Such a result, while too barbaric to be tolerated in our
nation, is not illogical if a government can tamper in the realm of thought and penalize "belief" on the ground
that it might lead to illegal conduct. Individual freedom and governmental thought-probing cannot live together.
As the Court admits even today, under the First Amendment "Beliefs are inviolate."

Today's decision rejects that fundamental principle. The Court admits, as it must, that the "proscriptions" of 9
(h) of the National Labor Relations Act as amended by the Taft-Hartley Act rest on "beliefs and political
affiliations," and that "Congress has undeniably discouraged the lawful exercise of political freedoms" which are
"protected by the First Amendment." These inescapable facts should compel a holding that 9 (h) conflicts with
the First Amendment.

Crucial to the Court's contrary holding is the premise that congressional power to regulate trade and traffic
includes power to proscribe "beliefs and political affiliations." No case cited by the Court provides the least
vestige of support for thus holding that the Commerce Clause restricts the right to think. On the contrary, the
First Amendment was added after adoption of the Constitution for the express purpose of barring Congress from
using previously granted powers to abridge belief or its expression. Freedom to think is inevitably abridged when
beliefs are penalized by imposition of civil disabilities.

Since 9 (h) was passed to exclude certain beliefs from one arena of the national economy, it was quite
natural [339 U.S. 382, 447] to utilize the test oath as a weapon. History attests the efficacy of that instrument for
inflicting penalties and disabilities on obnoxious minorities. It was one of the major devices used against the
Huguenots in France, and against "heretics" during the Spanish Inquisition. It helped English rulers identify and
outlaw Catholics, Quakers, Baptists, and Congregationalists - groups considered dangerous for political as well as
religious reasons. 3 And wherever the test oath was in vogue, spies and informers found rewards far more
tempting than truth. 4 Painful awareness of the evils of thought espionage made [339 U.S. 382, 448] such oaths
"an abomination to the founders of this nation," In re Summers, 325 U.S. 561, 576 , dissenting opinion. Whether
religious, political, or both, test oaths are implacable foes of free thought. By approving their imposition, this
Court has injected compromise into a field where the First Amendment forbids compromise.

The Court assures us that today's encroachment on liberty is just a small one, that this particular statutory
provision "touches only a relative handful of persons, leaving the great majority of persons of the identified
affiliations and beliefs completely free from restraint." But not the least of the virtues of the First Amendment is
its protection of each member of the smallest and most unorthodox minority. Centuries of experience testify that
laws aimed at one political or religious group, however rational these laws may be in their beginnings, generate
hatreds and prejudices which rapidly spread beyond control. Too often it is fear which inspires such passions,
and nothing is more reckless or contagious. In the resulting hysteria, popular indignation tars with the same
brush [339 U.S. 382, 449] all those who have ever been associated with any member of the group under attack or
who hold a view which, though supported by revered Americans as essential to democracy, has been adopted by
that group for its own purposes.

Under such circumstances, restrictions imposed on proscribed groups are seldom static, 5 even though the rate
of expansion may not move in geometric progression from discrimination to arm-band to ghetto and worse. Thus
I cannot regard the Court's holding as one which merely bars Communists from holding union office and nothing
more. For its reasoning would apply just as forcibly to statutes barring Communists and their suspected
sympathizers from election to political office, mere membership in unions, and in fact from getting or holding
any jobs whereby they could earn a living.
The Court finds comfort in its assurance that we need not fear too much legislative restriction of political belief
or association "while this Court sits." That expression, while felicitous, has no validity in this particular
constitutional field. For it springs from the assumption that individual mental freedom can be constitutionally
abridged whenever any majority of this Court finds a satisfactory legislative reason. Never before has this Court
held that the Government could for any reason attaint persons for their political beliefs or affiliations. It does so
today.

Today the "political affiliation" happens to be the Communist Party: testimony of an ex-Communist that some
Communist union officers had called "political [339 U.S. 382, 450] strikes" is held sufficient to uphold a law
coercing union members not to elect any Communist as an officer. Under this reasoning, affiliations with other
political parties could be proscribed just as validly. Of course there is no practical possibility that either major
political party would turn this weapon on the other, even though members of one party were accused of "political
lockouts" a few years ago and members of the other are now charged with fostering a "welfare state" alien to our
system. But with minor parties the possibility is not wholly fanciful. One, for instance, advocates
socialism; 6 another allegedly follows the Communist "line"; still another is repeatedly charged with a desire and
purpose to deprive Negroes of equal job opportunities. Under today's opinion Congress could validly bar all
members of these parties from officership in unions or industrial corporations; the only showing required would
be testimony that some members in such positions had, by attempts to further their party's purposes,
unjustifiably fostered industrial strife which hampered interstate commerce.

It is indicated, although the opinion is not thus limited and is based on threats to commerce rather than to
national security, that members of the Communist Party or its "affiliates" can be individually attainted without
danger to others because there is some evidence that as a group they act in obedience to the commands of a
foreign power. This was the precise reason given in Sixteenth-Century England for attainting all Catholics unless
they subscribed to test oaths wholly incompatible with their[339 U.S. 382, 451] religion. 7 Yet in the hour of
crisis, an overwhelming majority of the English Catholics thus persecuted rallied loyally to defend their
homeland against Spain and its Catholic troops. 8 And in our own country Jefferson and his followers were
earnestly accused of subversive allegiance to France. 9 At the time, imposition of civil disability on all members
of his political party must have seemed at least as desirable as does 9 (h) today. For at stake, so many believed,
was the survival of a newly-founded nation, not merely a few potential interruptions of commerce by strikes
"political" rather than economic in origin. [339 U.S. 382, 452]

These experiences underline the wisdom of the basic constitutional precept that penalties should be imposed
only for a person's own conduct, not for his beliefs or for the conduct of others with whom he may associate.
Guilt should not be imputed solely from association or affiliation with political parties or any other organization,
however much we abhor the ideas which they advocate. Schneiderman v. United States, 320 U.S. 118, 136 -
139. 10 Like anyone else, individual Communists who commit overt acts in violation of valid laws can and should
be punished. But the postulate of the First Amendment is that our free institutions can be maintained without
proscribing or penalizing political belief, speech, press, assembly, or party affiliation. 11 This is a far bolder
philosophy [339 U.S. 382, 453] than despotic rulers can afford to follow. It is the heart of the system on which
our freedom depends.

Fears of alien ideologies have frequently agitated the nation and inspired legislation aimed at suppressing
advocacy of those ideologies. 12 At such times the fog of public excitement obscures the ancient landmarks set up
in our Bill of Rights. Yet then, of all times, should this Court adhere most closely to the course they mark. This
was done in De Jonge v. Oregon, 299 U.S. 353, 365 , where the Court struck down a state statute making it a crime
to participate in a meeting conducted by Communists. It had been stipulated that the Communist Party
advocated violent overthrow of the Government. Speaking through Chief Justice Hughes, a unanimous Court
calmly announced time-honored principles that should govern this Court today: "The greater the importance of
safeguarding the community from incitements to the overthrow of our institutions by force and violence, the
more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free
assembly in order to maintain the opportunity for free political discussion, to the end that government may be
responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies
the security of the Republic, the very foundation of constitutional government."

[ Footnote 1 ] Dissenting opinion in Jones v. Opelika, 316 U.S. 584, 618 , adopted as the Court's opinion in 319 U.S.
103 . See also Cantwell v. Connecticut, 310 U.S. 296, 303 .

[ Footnote 2 ] 4 Blackstone, Commentaries 79 (6th ed. Dublin 1775).

[ Footnote 3 ] The increasing restrictions and punishment imposed on these groups are shown by the following
examples. In 1558 Parliament prescribed an oath, which no conscientious Catholic could take, for all judges,
ecclesiastical ministers, those receiving pay from the Queen, and those taking university degrees; four years later
the oath was extended to schoolmasters, lawyers, sheriffs, and court officers. In 1593 all Protestants were
required to attend Anglican services and forbidden to hold nonconformist religious meetings. And Catholics
convicted of failing to attend Anglican services regularly were restricted to within five miles of their dwellings. In
1609 such Catholics were barred even from serving as executors, guardians, physicians, or apothecaries, and
their right to prosecute suits in court was practically abolished; it was also made treason to be converted or
convert anyone else to Catholicism. Between 1661 and 1677, Parliament outlawed attendance at any non-
Anglican religious services, and required those holding civil, military, or municipal office to subscribe to an oath
which effectively barred Catholics and non-Anglican Protestants. Punishment for violations of these and the
many similar statutes ranged from fines and imprisonment to exile and death. See, e. g., 1 Eliz. c. 1; 5 Eliz. c. 1; 35
Eliz. cc. 1, 2; 3 Jac. I cc. 4, 5; 7 Jac. I cc. 2, 6; 13 Car. II Stat. 2, c. 1; 13 & 14 Car. II cc. 1, 4, 33; 22 Car. II c. 1; 25
Car. II c. 2; 30 Car. II Stat. 2. As for the political motivations and objectives of these statutes, see, e. g., the
declaration of purpose in 35 Eliz. c. 2, quoted in note 7 infra.

[ Footnote 4 ] Under the Stuart monarchs in England it was standard practice to give an informer one-third of the
fines collected from his victim. E. g., 3 Jac. I c. 5. And a few were sufficiently daring and unscrupulous [339 U.S.
382, 448] to obtain the more satisfying reward of fame. A notorious example took place in England during the
reign of Charles II: "The political atmosphere was electric. . . . Thus it is not strange that when Titus Oates, an
Anglican clergyman who had been reconciled the year before to Rome, came forward in August, 1678, to
denounce a vast Jesuit conspiracy against the King's life and the Protestant religion, his tale of wild lies met with
a degree of credence that later ages would perhaps have refused to it. . . . The Pope, he declared, had
commanded, and the Jesuits undertaken, a conquest of the kingdom; . . . . In all the arrangements he had been,
he said, a trusted emissary . . . . Over a hundred conspirators, mostly Jesuits, were mentioned by name . . . .
Oates was examined at the Council Board. The King caught him lying, but the extent and gravity of his charges
demanded investigation; . . . . In one important point Oates' story was confirmed. . . . There was no `plot' in
Oates' sense; but there was quite enough of plotting to cost men their heads under the English law of treason . . .
." 5 Cambridge Modern History 220-221.

[ Footnote 5 ] See note 3 supra. And see the comment on such legislation in 2 Hallam, The Constitutional History
of England 473 (London, 1829): "It is the natural consequence of restrictive laws to aggravate the disaffection
which has served as their pretext; and thus to create a necessity for a legislature that will not retrace its steps, to
pass still onward in the course of severity."

[ Footnote 6 ] Proscriptions based on affiliation with the Socialist Party are not unprecedented. In 1920 the New
York Assembly, upon allegations that the party was disloyal, suspended five legislators elected on the Socialist
ticket. The vigorous protests of a Bar Association committee headed by Charles Evans Hughes, later Chief Justice
of this Court, were of no avail. See John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev.
592, 593.

[ Footnote 7 ] 35 Eliz. c. 2, for example, was aimed at "sundry wicked and seditious Persons, who terming
themselves Catholicks, and being indeed Spies and Intelligencers, . . . and hiding their most detestable and
devilish Purposes under a false Pretext of Religion and Conscience, do secretly wander and shift from Place to
Place within this Realm, to corrupt and seduce her Majesty's Subjects, and to stir them to Sedition and
Rebellion."

[ Footnote 8 ] As is evidenced by the statute quoted in note 7 supra, the test oaths, the drastic restrictions and the
punishment imposed on Catholics were "based on the assumption that all Catholics were politically hostile to the
Queen, and were at one with Allen and the Jesuits in seeking her deposition and the conquest of the country by
Spain. The patriotic action of the Catholics at home through the crisis of the Spanish Armada proved the
weakness of this assumption. In the hour of peril the English Catholics placed loyalty to their Queen and country
before all other considerations. . . . The injustice of imputing treachery to the whole Catholic population was
proved beyond question." 3 Cambridge Modern History 351.

[ Footnote 9 ] Castigating Jefferson and his followers as "jacobins," a "French faction" guilty of "subversion,"
Fisher Ames warned: "[T]he jacobins have at last made their own discipline perfect: they are trained, officered,
regimented and formed to subordination, in a manner that our militia have never yet equalled. . . . [A]nd it is as
certain as any future event can be, that they will take arms against the laws as soon as they dare . . . ." Ames,
Laocoon, printed in Works of Fisher Ames 94, 101, 106 (Boston, 1809).

[ Footnote 10 ] And see, e. g., John Lord O'Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev. 592.
That article quotes the following from a Memorial submitted to the New York Assembly by a special committee of
the Bar Association of the City of New York protesting the suspension of five Socialist legislators: "it is of the
essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the
holding of opinion or to mere intent in the absence of overt acts . . . ." O'Brian points out that this Memorial was
"largely written by" Charles Evans Hughes. Id. at 594.

[ Footnote 11 ] "If there be any among us who would wish to dissolve this Union or to change its republican form,
let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where
reason is left free to combat it. I know, indeed, that some honest men fear that a republican government cannot
be strong; that this government is not strong enough. But would the honest patriot, in the full tide of successful
experiment, abandon a government which has so far kept us free and firm, on the theoretic and visionary fear
that this government, the world's best hope, may by possibility want energy to preserve itself?" Thomas
Jefferson, First Inaugural Address, March 4, 1801. This address, along with other writings on freedoms
guaranteed by the First Amendment, is reprinted in Jones, Primer of Intellectual Freedom 142 (Harvard
University Press, 1949).
[ Footnote 12 ] For discussion of early American models, the Alien and Sedition Acts, see Bowers, Jefferson and
Hamilton, 1925, c. XVI, "Hysterics," and c. XVII, "The Reign of Terror"; 1 Morison, Life of Otis, c. VIII, "A System
of Terror." [339 U.S. 382, 454]

-==========================================================================================================

G.R. No. L-32066 August 6, 1979

MANUEL LAGUNZAD, petitioner,

vs.
MARIA SOTO VDA. DE GONZALES and THE COURT OF APPEALS, respondents.
Diosdado P. Peralta for petitioner.
Manuel S. Tonogbanua for private respondent.

MELENCIO-HERRERA, J.:
Before us is a Petition for Review by certiorari of the Decision of the Court of Appeals in CA-G.R. No. 34703,
promulgated on January 13, 1970, affirming the Decision of the Court of First Instance of Negros Occidental, dated
June 30, 1964, in Civil Case No. 6414 entitled "Maria Soto Vda. de Gonzales vs. Manuel Lagunzad," for a Sum of
Money and Attachment.
The present controversy stems from a "Licensing Agreement" entered into by and between petitioner Manuel M.
Lagunzad and private respondent Maria Soto Vda. de Gonzales on October 5, 1961, which contract petitioner claims
to be null and void for having been entered into by him under duress, intimidation and undue influence.
The antecedental facts follow: Sometime in August, 1961, petitioner Manuel Lagunzad, a newspaperman, began the
production of a movie entitled "The Moises Padilla Story" under the name of his own business outfit, the "MML
Productions." It was based mainly on the copyrighted but unpublished book of Atty. Ernesto Rodriguez, Jr., entitled
"The Long Dark Night in Negros" subtitled "The Moises Padilla Story," 1 the rights to which petitioner had purchased
from Atty. Rodriguez in the amount of P2,000.00. 2
The book narrates the events which culminated in the murder of Moises Padilla sometime between November 11 and
November 17, 1951. Padilla was then a mayoralty candidate of the Nacionalista Party (then the minority party) for the
Municipality of Magallon, Negros Occidental, during the November, 1951 elections. Governor Rafael Lacson, a
member of the Liberal Party then in power and his men were tried and convicted for that murder inPeople vs. Lacson,
et al. 3 In the book, Moises Padilla is portrayed as "a martyr in contemporary political history."
Although the emphasis of the movie was on the public life of Moises Padilla, there were portions which dealt with his
private and family life including the portrayal in some scenes, of his mother, Maria Soto Vda. de Gonzales, private
respondent herein, and of one "Auring" as his girl friend. 4
The movie was scheduled for a premiere showing on October 16, 1961, or at the very latest, before the November,
1961 elections.
On October 3, 1961, petitioner received a telephone call from one Mrs. Nelly Amante, half-sister of Moises Padilla,
objecting to the filming of the movie and the "exploitation" of his life. Shown the early "rushes" of the picture, Mrs.
Amante and her sister, Mrs. Gavieres, objected to many portions thereof notwithstanding petitioner's explanation that
the movie had been supervised by Ernesto Rodriguez, Jr., based on his book "The Long Dark Night in Negros." On
October 5, 1961, Mrs. Amante, for and in behalf of her mother, private respondent, demanded in writing for certain
changes, corrections and deletions in the movie. 5 Petitioner contends that he acceded to the demands because he had
already invested heavily in the picture to the extent of mortgaging his properties, 6 in addition to the fact that he had to
meet the scheduled target date of the premiere showing.
On the same date, October 5, 1961, after some bargaining as to the amount to be paid, which was P50,000.00 at first,
then reduced to P20,000.00, 7 petitioner and private respondent, represented by her daughters and Atty. Ernesto
Rodriguez, at the law office of Jalandoni and Jamir, executed a "Licensing Agreement" reading as follows:
LICENSING AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement, made and executed at the City of Manila, Philippines, this 5th day of October, 1961,
by and between:
MANUEL M. LAGUNZAD, of legal age, married, presently engaged in the
business of producing motion pictures under the style of "MML Productions" with
residence at 76 Central Boulevard, Quezon City and with offices at 301 Cu Unjieng
Bldg., Escolta, Manila and hereinafter referred to as LICENSEE,
— and —
MARIA SOTO VDA. DE GONZALES, of legal age, widow, resident of the
Municipality of Moises Padilla, Province of Negros Occidental, represented in this
Act by her Attorneys-in-fact Atty. Ernesto Rodriguez, Jr. of legal age and resident of
393F-Buencamino St., San Miguel, Manila; Maria Nelly G. Amazite, of legal age
and resident of 121 South 13, Quezon City; and Dolores G, Gavieres, of legal age,
and resident of 511 San Rafael Street, Quiapo, Manila, also duly authorized and
hereinafter referred to as LICENSOR,
WITNESSETH:
That, the LICENSEE is currently producing a motion picture entitled "The Moises Padilla Story"
(hereinafter referred to as the PICTURE, for short) based on certain episodes in the life of Moises
Padilla, now deceased:
That the LICENSOR is the legitimate mother and only surviving compulsory heir of Moises Padilla,
the latter not having married during his lifetime and having died without any descendants, legitimate
or illegitimate;
That, in the PICTURE and in all incidents thereof, such as scenarios, advertisements, etc., the
LICENSEE has, without the prior consent and authority of LICENSOR, exploited the life story of
Moises Padilla for pecuniary gain and other profit motives, and has, furthermore encroached upon the
privacy of Moises Padilla's immediate family, and has in fact, included in the PICTURE'S cast,
persons portraying some of MOISES PADILLA's kin, including LICENSOR herself;
That, for and in consideration of the foregoing premises and the other covenants and conditions
hereunder stated, the LICENSOR hereby grants authority and permission to LICENSEE to exploit,
use, and develop the life story of Moises Padilla for purposes of producing the PICTURE, and in
connection with matters incidental to said production, such as advertising and the like, as well as
authority and permission for the use of LICENSOR's name in the PICTURE and have herself
portrayed therein, the authority and permission hereby granted, to retroact to the date when
LICENSEE first committed any of the acts herein authorized.
THE CONDITIONS AND OTHER COVENANTS OF THIS AGREEMENT ARE AS FOLLOWS:
1. For and in consideration of the authority and permission hereby granted by LICENSOR to
LICENSEE, LICENSEE shall pay LICENSOR, through Atty. Lope E. Adriano at the Pelaez and
Jalandoni Law Office, 6th Floor, Magsaysay Bldg., San Luis, Ermita, Manila, the following:
a) The sum of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency,
payable without need of further demand, as follows: P5,000.00 on or before Oct. 10,
1961; P10,000.00 on or before Oct. 31, 1961; and P5,000.00 on or before November
30, 1961. In default of the payment of any of these amounts as they fall due, the
others become immediately due and demandable.
b) A royalty in such amount corresponding to TWO AND A HALF PER CENTUM
(2-½ %) of all gross income or receipts derived by, and/or for and in behalf of,
LICENSEE as rentals and or percentage of box office receipts from exhibitors and
others for the right to exploit, use, distribute and/or exhibit the picture anywhere
here in the Philippines or abroad.
2) The LICENSEE agrees to keep complete, true and accurate books of accounts, contracts and
vouchers relating to the exploitation, distribution and exhibition of the PICTURE, the bookings
 thereof and the rentals and gross receipts therefrom, and to give to LICENSOR and/or her accredited
representatives, full access at all reasonable times to all of the said books, accounts, records, vouchers
and all other papers.
3) The LICENSEE shall furnish LICENSOR monthly statements in duplicate, showing in detail the
gross receipts accruing from the picture, which monthly statements shall be delivered to the
LICENSOR with reasonable promptness, and upon verification and approval of said statements by
LICENSOR, the LICENSEE shall pay the corresponding royalties due to the LICENSOR.
4) The authority and permission herein granted is subject to the condition that LICENSEE shall
change, delete, and/or correct such portions in the PICTURE as the LICENSOR may require, in
writing before final printing of the PICTURE, and shall, furthermore, not be understood as a consent
to anything in the picture that is, or tends to be, derogatory to the deceased MOISES PADILLA or to
LICENSOR.
5) The LICENSOR shall not in any way be liable on any claim from third persons as a result of, or
arising from, the manner by which the PICTURE is put together, nor on any claim arising from the
production, distribution and exhibition of the PICTURE, and in the event of any such claim being
asserted against LICENSOR, the LICENSEE undertakes to hold LICENSOR harmless thereon.
6) This agreement shall be binding upon the parties hereto, their representatives, administrators,
successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date and at the place first
above stated.
MARIA SOTO VDA. DE GONZALES MANUEL M. LAGUNZAD
Licensor Licensee
By:
(Sgd.) ERNESTO R. RODRIGUEZ, Jr.
(Sgd.) MARIA NELLY G. AMANTE
(Sgd.) DOLORES G. GAVIERES
Attorneys-in-fact
SIGNED IN THE PRESENCE OF:
LOPE E. ADRIANO ILLEGIBLE
ACKNOWLEDGMENT
Petitioner takes the position that he was pressured into signing the Agreement because of private respondent's demand,
through Mrs. Amante, for payment for the "exploitation" of the life story of Moises Padilla, otherwise, she would "call
a press conference declaring the whole picture as a fake, fraud and a hoax and would denounce the whole thing in the
press, radio, television and that they were going to Court to stop the picture." 8
On October 10, 1961, petitioner paid private respondent the amount of P5,000.00 but contends that he did so not
pursuant to their Agreement but just to placate private respondent.9
On October 14, 1961, the filming of the movie was completed. On October 16, 1961, a premiere showing was held at
the Hollywood Theatre, Manila, with the Moises Padilla Society as its sponsor. 10 Subsequently, the movie was shown
in different theaters all over the country.
Because petitioner refused to pay any additional amounts pursuant to the Agreement, on December 22, 1961, private
respondent instituted the present suit against him praying for judgment in her favor ordering petitioner 1) to pay her
the amount of P15,000.00, with legal interest from the filing of the Complaint; 2) to render an accounting of the
proceeds from the picture and to pay the corresponding 2-1/2% royalty therefrom; 3) to pay attorney's fees equivalent
to 20% of the amounts claimed; and 4) to pay the costs.
Traversing the Complaint, petitioner contended in his Answer that the episodes in the life of Moises Padilla depicted
in the movie were matters of public knowledge and occurred at or about the same time that the deceased became and
was a public figure; that private respondent has no property right over those incidents; that the Licensing Agreement
was without valid cause or consideration and that he signed the same only because private respondent threatened him
with unfounded and harassing action which would have delayed production; and that he paid private respondent the
amount of P5,000.00 in October, 1961, only because of the coercion and threat employed upon him. By way of
counterclaim, petitioner demanded that the Licensing Agreement be declared null and void for being without any valid
cause; that private respondent be ordered to return to him the amount of P5,000.00; and that he be paid P50,000.00 by
way of moral damages, and P7,500.00 as attorney's fees.
Private respondent duly filed her Answer to Counterclaim alleging that the transaction between her and petitioner was
entered into freely and voluntarily.
On June 30, 1964, the trial Court rendered a Decision, and decreed in its dispositive portion:
WHEREFORE, judgment is hereby rendered ordering the defendant Manuel Lagunzad to pay the
plaintiff the sum of P15,000.00 with interest at the rate of 6% per annum from December 22, 1961 up
to its complete payment; to order the defendant to render an accounting of the gross income or
proceeds derived from the exhibition, use and/or rental of the motion picture of "The Moises Padilla
Story" and to pay the plaintiff 2- 1/2% of said gross income; to pay the plaintiff the amount
equivalent to 20% of the amount due the plaintiff under the first cause of action as attorney's fees;
and to pay the costs.
On appeal to the Court of Appeals, the latter Court affirmed the judgment. Reconsideration having been denied by the
Court, petitioner filed the instant Petition for Review on Certiorari.
Initially, or on June 16, 1970, this Court denied the Petition for lack of merit, but resolved subsequently to give it due
course after petitioner moved for reconsideration on the additional argument that the movie production was in exercise
of the constitutional right of freedom of expression, and that the Licensing cement is a form of restraint on the
freedom of speech and of the press.
In his Brief, petitioner assigns the following errors to the appellate Court:
I. THE COURT OF APPEALS ERRED IN EXERCISING JURISDICTION IN THE CASE
BECAUSE THE JUDGMENT APPEALED FROM WAS INTERLOCUTORY IN NATURE AND
CHARACTER;
II. THE COURT OF APPEALS ERRED IN ITS FAILURE TO MAKE COMPLETE FINDINGS OF
FACTS ON ALL ISSUES BEFORE IT;
III. THE COURT OF APPEALS ERRED IN NOT DECLARING THE LICENSING AGREEMENT,
EXHIBIT "A", NULL AND VOID FOR LACK OF, OR FOR HAVING AN ILLEGAL CAUSE OR
CONSIDERATION OF CONTRACT, PETITIONER HAVING PREVIOUSLY OBTAINED THE
AUTHORITY AND/OR PERMISSION PURPOSELY GRANTED TO HIM BY RESPONDENT
UNDER SAID LICENSING AGREEMENT;
IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING
AGREEMENT, EXHIBIT "A", IS NULL AND VOID; RESPONDENT NOT HAVING HAD ANY
PROPERTY NIGHTS OVER THE INCIDENTS IN THE LIFE OF MOISES PADILLA WHO WAS
A PUBLIC FIGURE.
V. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING
AGREEMENT, EXHIBIT "A", WAS NULL AND VOID, PETITIONER'S CONSENT HAVING
BEEN PROCURED BY MEANS OF DURESS, INTIMIDATION AND UNDUE INFLUENCE;
VI. THE COURT OF APPEALS, IN UPHOLDING THE RIGHT TO PRIVACY OF RESPONDENT
AS DEFINED IN ART. 26 OF THE NEW CIVIL CODE OVER THE RIGHT OF PETITIONER TO
FILM THE PUBLIC LIFE OF A PUBLIC FIGURE, INFRINGED UPON THE CONSTITUTIONAL
RIGHT OF PETITIONER TO FREE SPEECH AND FREE PRESS.
We find the assigned errors bereft of merit.
Petitioner's contention that because an accounting had been ordered, respondent Court of Appeals did not have
jurisdiction over the case as the Decision of the lower Court was not yet final and appealable, is untenable. The
doctrine enunciated in Fuentebella vs. Carrascoso 11 relied upon by petitioner, which held that whether or not the
action for accounting is the principal action or is merely incidental to another, the judgment requiring such accounting
cannot be final, has been abandoned in Miranda vs. Court of Appeals 12 which ruled:
 For the guidance of bench and bar, the Court declares as abandoned the doctrine of Fuentebella vs.
Carrascoso and adopts the opposite rule that judgments for recovery with accounting are final and
appealable (without need of awaiting the accounting) and would become final and executory if not
appealed within the reglementary period.
In other words, where there is complete adjudication and determination of the rights and obligations of the parties, as
in the instant case, an order for accounting in that judgment does not affect its final character, said accounting being
merely incidental to the judgment.
Petitioner's contention that respondent Court failed to make complete findings of fact on all issues raised before it is
without basis. A careful study of the Decision reveals that respondent Court has substantially and sufficiently
complied with the injunction that a decision must state clearly and distinctly the facts and the law on which it is based.
The rule remains that the ultimate test as to the sufficiency of a Court's findings of fact is "whether they are
comprehensive enough and pertinent to the issues raised to provide a basis for decision." 13 The judgment sought to be
reviewed sufficiently complies with this requirement.
Neither do we agree with petitioner's submission that the Licensing Agreement is null and void for lack of, or for
having an illegal cause or consideration. While it is true that petitioner had purchased the rights to the book entitled
"The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs
to portray publicly episodes in said deceased's life and in that of his mother and the members of his family. As held
in Schuyler v. Curtis,14 "a privilege may be given the surviving relatives of a deceased person to protect his memory,
but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their own
rights in the character and memory of the deceased."
Petitioner's averment that private respondent did not have any property right over the life of Moises Padilla since the
latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto
a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to
a fictional or novelized representation of a person, no matter how public a figure he or she may be. 15In the case at bar,
while it is true that petitioner exerted efforts to present a true-to-life story of Moises Padilla, petitioner admits that he
included a little romance in the film because without it, it would be a drab story of torture and brutality. 16
We also find it difficult to sustain petitioner's posture that his consent to the Licensing Agreement was procured thru
duress, intimidation and undue influence exerted on him by private respondent and her daughters at a time when he
had exhausted his financial resources, the premiere showing of the picture was imminent, and "time was of the
essence." As held in Martinez vs. Hongkong & Shanghai Bank, 17 it is necessary to distinguish between real duress
and the motive which is present when one gives his consent reluctantly. A contract is valid even though one of the
parties entered into it against his own wish and desires, or even against his better judgment. In legal effect, there is no
difference between a contract wherein one of the contracting parties exchanges one condition for another because he
looks for greater profit or gain by reason of such change, and an agreement wherein one of the contracting parties
agrees to accept the lesser of two disadvantages. In either case, he makes a choice free and untramelled and must
accordingly abide by it. The Licensing Agreement has the force of law between the contracting parties and since its
provisions are not contrary to law, morals, good customs, public order or public policy (Art. 1306, Civil Code),
petitioner Should comply with it in good faith.
Lastly, neither do we find merit in petitioner's contention that the Licensing Agreement infringes on the constitutional
right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his
thoughts in film on the public life of Moises Padilla without prior restraint. The right of freedom of expression,
indeed, occupies a preferred position in the "hierarchy of civil liberties." 18 It is not, however, without limitations. As
held in Gonzales vs. Commission on Elections, 27 SCRA 835, 858 (1969):
From the language of the specific constitutional provision, it would appear that the right is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the
press. The realities of life in a complex society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other societal values that press
for recognition.
The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion for permissible
limitation on freedom of speech and of the press, which includes such vehicles of the mass media as radio, television
and the movies, is the "balancing-of-interests test." 19 The principle i requires a court to take conscious and detailed
consideration of the interplay of interests observable in a given situation or type of situation."20
In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of -freedom of
expression invoked by petitioner. Taking into account the interplay of those interests, we hold that under the particular
circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by
petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of
expression are reached when expression touches upon matters of essentially private concern.
WHEREFORE, the Petition for Review is denied and the judgment appealed from hereby affirmed. Costs against
petitioner.
SO ORDERED.
Makasiar, Fernandez, Guerrero and De Castro, JJ., concur.
Teehankee, (Chairman), J, concur in the result.

========================================================================================================

United States Supreme Court

SCHENCK v. U.S., (1919)

No. 437
Argued: Decided: March 3, 1919
[249 U.S. 47, 48] Messrs. Henry John Nelson and Henry Johns Gibbons, both of Philadelphia, Pa., for plaintiffs
in error.

Mr. John Lord O'Brian, of Buffalo, N. Y., for the United States.

Mr. Justice HOLMES delivered the opinion of the Court.

This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917,
c. 30, tit. 1, 3, 40 Stat. 217, 219 (Comp. St. 1918, 10212c), by causing and attempting[249 U.S. 47, 49] to cause
insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and
enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that
the defendant wilfully conspired to have printed and circulated to men who had been called and accepted for
military service under the Act of May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, 2044a-2044k), a document set
forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in
pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a
conspiracy to commit an offense against the United States, to-wit, to use the mails for the transmission of matter
declared to be non-mailable by title 12, 2, of the Act of June 15, 1917 (Comp. St. 1918, 10401b), to-wit, the above
mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the
mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all
the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging
the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points
also of which we must dispose.

It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was
concerned in sending the documents. According to the testimony Schenck said he was general secretary of the
Socialist party and had charge of the Socialist headquarters from which the documents were sent. He identified a
book found there as the minutes of the Executive Committee of the party. The book showed a resolution of
August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to
men who had passed exemption boards, and for distribution. Schenck personally attended to the printing.
On [249 U.S. 47, 50] August 20 the general secretary's report said 'Obtained new leaflets from printer and started
work addressing envelopes' &c.; and there was a resolve that Comrade Schenck be allowed $125 for sending
leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the
circular in question in the inner office which he said were printed on the other side of the one sided circular and
were there for distribution. Other copies were proved to have been sent through the mails to drafted men.
Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant
Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence
that she was a member of the Executive Board and that the minutes of its transactions were hers. The argument
as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the
seriousness of the real defence.

It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid
so far as appears. The contrary is established. Adams v. New York, 192 U.S. 585 , 24 Sup. Ct. 372; Weeks v. United
States, 232 U.S. 383, 395 , 396 S., 34 Sup. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The search warrant
did not issue against the defendant but against the Socialist headquarters at 1326 Arch street and it would seem
that the documents technically were not even in the defendants' possession. See Johnson v. United States, 228
U.S. 457 , 33 Sup. Ct. 572, 47 L. R. A. ( N. S.) 263. Notwithstanding some protest in argument the notion that
evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the
Fifth Amendment is plainly unsound. Holt v. United States, 218 U.S. 245, 252 , 253 S., 31 Sup. Ct. 2

The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said
that the idea embodied in it was violated by the conscription act and that a conscript is little better than a [249
U.S. 47, 51] convict. In impassioned language it intimated that conscription was despotism in its worst form and
a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said, 'Do not submit to
intimidation,' but in form at least confined itself to peaceful measures such as a petition for the repeal of the act.
The other and later printed side of the sheet was headed 'Assert Your Rights.' It stated reasons for alleging that
any one violated the Constitution when he refused to recognize 'your right to assert your opposition to the draft,'
and went on, 'If you do not assert and support your rights, you are helping to deny or disparage rights which it is
the solemn duty of all citizens and residents of the United States to retain.' It described the arguments on the
other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the
conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to
foreign shores to shoot up the people of other lands, and added that words could not express the condemnation
such cold-blooded ruthlessness deserves , &c., &c., winding up, 'You must do your share to maintain, support
and uphold the rights of the people of this country.' Of course the document would not have been sent unless it
had been intended to have some effect, and we do not see what effect it could be expected to have upon persons
subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that
the jury might find against them on this point.

But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the
Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It
well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints,
although to prevent them may have been the [249 U.S. 47, 52] main purpose, as intimated in Patterson v.
Colorado, 205 U.S. 454, 462 , 27 S. Sup. Ct. 556, 51 L. ed. 879, 10 Ann. Cas. 689. We admit that in many places
and in ordinary times the defendants in saying all that was said in the circular would have been within their
constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v.
Wisconsin, 195 U.S. 194, 205 , 206 S., 25 Sup. Ct. 3. The most stringent protection of free speech would not
protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an
injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221
U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and
degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight and that no Court could regard them as protected by
any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were
proved, liability for words that produced that effect might be enforced. The statute of 1917 in section 4 (Comp. St.
1918 , 10212d) punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating
a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that
success alone warrants making the act a crime. Goldman v. United States, 245 U.S. 474 , 477 38 Sup. Ct. 166, 62
L. ed. 410. Indeed that case might be said to dispose of the present contention if the precedent covers all media
concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words.

It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The [249 U.S.
47, 53] words are 'obstruct the recruiting or enlistment service,' and it might be suggested that they refer only to
making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers
the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as
well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact
that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not
affect the present indictment and would not, even if the former act had been repealed. Rev. St. 13 (Comp. St. 14).

Judgments affirmed.

United States Supreme Court

BRANDENBURG v. OHIO, (1969)

No. 492
Argued: February 27, 1969 Decided: June 9, 1969
Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . .
. the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group or
assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Neither the
indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere
advocacy not distinguished from incitement to imminent lawless action. Held: Since the statute, by its words and
as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with
others merely to advocate the described type of action, it falls within the condemnation of the First and
Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of
force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action. Whitney v. California, 274 U.S. 357 , overruled.

Reversed.

Allen Brown argued the cause for appellant. With him on the briefs were Norman Dorsen, Melvin L. Wulf,
Eleanor Holmes Norton, and Bernard A. Berkman.

Leonard Kirschner argued the cause for appellee. With him on the brief was Melvin G. Rueger.

Paul W. Brown, Attorney General of Ohio, pro se, and Leo J. Conway, Assistant Attorney General, filed a brief for
the Attorney General as amicus curiae.

PER CURIAM.

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for
"advocat[ing] . . . the duty, necessity, or propriety [395 U.S. 444, 445] of crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily
assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of
criminal syndicalism." Ohio Rev. Code Ann. 2923.13. He was fined $1,000 and sentenced to one to 10 years'
imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First
and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio
affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, sua sponte, "for the
reason that no substantial constitutional question exists herein." It did not file an opinion or explain its
conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 948 (1968). We reverse.

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff
of a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be held at a farm in
Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting
and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution's case rested on the films and on testimony identifying the appellant as the person who
communicated with the reporter and who spoke at the rally. The State also introduced into evidence several
articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by
the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden
cross, which they burned. No one was present [395 U.S. 444, 446] other than the participants and the newsmen
who made the film. Most of the words uttered during the scene were incomprehensible when the film was
projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of
Jews. 1 Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in
full, was as follows:

"This is an organizers' meeting. We have had quite a few members here today which are - we have hundreds,
hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus,
Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any
other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court,
continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance
taken.
"We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into
two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank
you." [395 U.S. 444, 447]
The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very
similar to that recorded on the first film. The reference to the possibility of "revengeance" was omittted[î], and
one sentence was added: "Personally, I believe the nigger should be returned to Africa, the Jew returned to
Israel." Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws
were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the
United States 21 (1939). In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism
Act, Cal. Penal Code 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v.
California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, "advocating"
violent means to effect political and economic change involves such danger to the security of the State that the
State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by
later decisions. See Dennis v. United States, 341 U.S. 494 , at 507 (1951). These later decisions have fashioned the
principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action. 2 As we[395 U.S. 444, 448] said
in Noto v. United States, 367 U.S. 290, 297 -298 (1961), "the mere abstract teaching . . . of the moral propriety or
even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and
steeling it to such action." See also Herndon v. Lowry,301 U.S. 242, 259 -261 (1937); Bond v. Floyd, 385 U.S. 116,
134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed
by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has
immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298 (1957); De Jonge v. Oregon, 299
U.S. 353 (1937); Stromberg v. California, 283 U.S. 359 (1931). See also United States v. Robel, 389 U.S. 258(1967);
Keyishian v. Board of Regents, 385 U.S. 589 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secretary
of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964).

Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who
"advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or
political reform"; or who publish or circulate or display any book or paper containing such advocacy; or who
"justify" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the
doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group formed "to teach or advocate the
doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions to the jury in any way
refined the statute's bald definition of the crime [395 U.S. 444, 449] in terms of mere advocacy not distinguished
from incitement to imminent lawless action. 3

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish
mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the
described type of action. 4 Such a statute falls within the condemnation of the First and Fourteenth
Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is
therefore overruled.
Reversed.

G.R. No. 119673 July 26, 1996

IGLESIA NI CRISTO, (INC.), petitioner,

vs.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND
TELEVISION and HONORABLE HENRIETTA S. MENDOZA, respondents.

PUNO, J.:p
This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals affirming the action of the respondent Board of Review for Moving
Pictures and Television which x-rated the TV Program "Ang Iglesia ni Cristo."

Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang Iglesia ni
Cristo" aired on Channel 2 every Saturday and on Channel 13 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, October and November 1992 petitioner submitted to the respondent Board of
Review for Moving Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The
Board classified the series as "X" or not for public viewing on the ground that they "offend and constitute an attack
against other religions which is expressly prohibited by law."
Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it appealed to the
Office of the President the classification of its TV Series No. 128. It succeeded in its appeal for on December 18,
1992, the Office of the President reversed the decision of the respondent Board. Forthwith, the Board allowed Series
No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-14280, with the RTC,
NCR Quezon City.1 Petitioner alleged that the respondent Board acted without jurisdiction or with grave abuse of
discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited its TV
Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power under PD No. 1986
in relation to Article 201 of the Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary injunction. The
parties orally argued and then marked their documentary evidence. Petitioner submitted the following as its
exhibits, viz.:
(1) Exhibit "A," respondent Board's Voting Slip for Television showing its September 9, 1992 action
on petitioner's Series No. 115 as follows:2
REMARKS:
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 remarks which are direct criticism which affect other religions.
Need more opinions for this particular program. Please subject to more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its September 11, 1992
subsequent action on petitioner's Series No. 115 as follows:3
REMARKS:
This program is criticizing different religions, based on their own interpretation of the Bible.
We suggest that the program should delve on explaining their own faith and beliefs and avoid attacks
on other faith.
(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9, 1992 action on
petitioner's Series No. 119, as follows:4
 REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic)
veneration of the Virgin Mary 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.
(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October 20, 1992 action
on petitioner's Series No. 121 as follows:5
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they do on, specifically, the
Catholic religion.
I 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.
(5) Exhibit "D," respondent Board's Voting Slip for Television showing its November 20, 1992 action
on petitioner's Series No. 128 as follows:6
REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and Protestant's beliefs.
We suggest a second review.
(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting Corporation
dated September 1, 1992.7
(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation.8
(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante,
Sr., addressed for Henrietta S. Mendez reversing the decision of the respondent Board which x-rated
the showing of petitioner's Series No. 129. The letter reads in part:
xxx xxx xxx
The television episode in question is protected by the constitutional guarantee of free
speech and expression under Article III, section 4 of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well as studied the
passages found by MTRCB to be objectionable and we find no indication that the
episode poses any clear and present danger sufficient to limit the said constitutional
guarantee.
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed to
President Fidel V. Ramos appealing the action of the respondent Board x-rating petitioner's Series
No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated December 18, 1992
allowing the showing of Series No. 128 under parental guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era
Broadcasting Service which reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please
be informed that the Board was constrained to deny your show a permit to exhibit.
The material involved constitute an attack against another religion which is
expressly prohibited by law. Please be guided in the submission of future shows.
 After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on
petitioner's bond o P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs.9 The pre-trial briefs show that
the parties' evidence is basically the evidence they submitted in the hearing of the issue of preliminary injunction. 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 Judgment,10 on December 15, 1993,
the dispositive portion of which reads:
xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Moving
Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the necessary permit for all the
series of "Ang Iglesia ni Cristo" program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other existing
religions in showing "Ang Iglesia ni Cristo" program.
SO ORDERED.
Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the dispositive portion
of the Decision, and (b) for the Board to be perpetually enjoined from requiring petitioner to submit for review the
tapes of its program. The respondent Board opposed the motion. 12 On March 7, 1993, the trial court granted
petitioner's Motion for Reconsideration. It ordered:13
xxx xxx xxx
WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Court's Order
dated December 15, 1993, directing petitioner to refrain from offending and attacking other existing
religions in showing "Ang Iglesia ni Cristo" program is hereby deleted and set aside. Respondents are
further prohibited from requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its
religious program "Ang Iglesia ni Cristo."
Respondent Board appealed to the Court of Appeals after its motion for reconsideration was denied. 14
On March 5, 1995, the respondent Court of Appeals15 reversed the trial court. It ruled that: (1) the respondent board
has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and (2) the respondent Board did not act
with grave abuse of discretion when it denied permit for the exhibition on TV of the three series of "Ang Iglesia ni
Cristo" on the ground that the materials constitute an attack against another religion. It also found the series "indecent,
contrary to law and contrary to good customs.
In this petition for review on certiorari under Rule 45, petitioner raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE "ANG IGLESIA NI CRISTO" PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS
A FORM OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING
THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE "ANG IGLESIA NI CRISTO"
PROGRAM IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME
CASE THAT IT POSES A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS.
IV
 WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE "ANG IGLESIA NI CRISTO," A PURELY RELIGIOUS PROGRAM IS INDECENT AND
CONTRARY TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review petitioner's
TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power, whether it gravely abused its
discretion when it prohibited the airing of petitioner's religious program, series Nos. 115, 119 and 121, for the reason
that they constitute an attack against other religions and that they are indecent, contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section 3 pertinently
provides:
Sec. 3 Powers and Functions. -- The BOARD shall have the following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical distribution for television broadcast or for
general viewing, imported or produced in the Philippines and in the latter case, whether they be for
local viewing or for export.
c) To approve, delete objectionable portion from and/or prohibit the importation, exportation,
production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion
pictures, television programs and publicity materials, subject of the preceding paragraph, which, in
the judgment of the BOARD applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines 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 and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are subjudice in nature (emphasis ours).
The law gives the Board the power to screen, review and examine all "television programs." By the clear
terms of the law, the Board has the power to "approve, delete . . . and/or prohibit the . . . exhibition and/or
television broadcast of . . . television programs . . ." The law also directs the Board to apply "contemporary
Filipino cultural values as standard" to determine those which are objectionable for being "immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime."
Petitioner contends that the term "television program" should not include religious programs like its program "Ang
Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5, Article III of the Constitution which
guarantees that "no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall
forever be allowed."
We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an uncharted sea.
Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present.
We 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." 16 We have also laboriously defined in
our jurisprudence the intersecting umbras and penumbras of the right to religious profession and worship. To quote the
summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: 17
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and
freedom to act on one's beliefs. The first is absolute as long as the belief is confined within the realm
of thought. The second is subject to regulation where the belief is translated into external acts that
affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may
indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or
reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence;
recognize or deny the immortality of his soul -- in fact, cherish any religious conviction as he and he
alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the
majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He
may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men may
believe what they cannot prove." Every one has a right to his beliefs and he may not be called to
account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the public, his
freedom to do so becomes subject to the authority of the State. As great as this liberty may be,
religious freedom, like all the other rights guaranteed in the Constitution, can be enjoyed only with a
proper regard for the rights of others. It is error to think that the mere invocation of religious freedom
will stalemate the State and render it impotent in protecting the general welfare. The inherent police
power can be exercised to prevent religious practices inimical to society. And this is true even if such
practices are pursued out of sincere religious conviction and not merely for the purpose of evading
the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious
dogma.
Accordingly, while one has lull freedom to believe in Satan, he may not offer the object of his piety a
human sacrifice, as this would be murder. Those who literally interpret the Biblical 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 taxes on the ground that it would be against his
religious tenets to recognize any authority except that of God alone. An atheist cannot express in his
disbelief in act of derision that wound the feelings of the faithful. The police power can validly
asserted against the Indian practice of the suttee, born of deep religious conviction, that calls on the
widow to immolate herself at the funeral pile of her husband.
We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent Board. Its
public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium
that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can
be regulated by the State when it will bring about the clear and present danger of some substantive evil which the
State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history
counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country
today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable
religious differences. Our country is still not safe from the recurrence of this stultifying strife considering our warring
religious beliefs and the fanaticism with which some of us cling and claw to these beliefs. Even now, we have yet to
settle the near century old strife in Mindanao, the roots of which have been nourished by the mistrust and
misunderstanding between our Christian and Muslim brothers and sisters. The bewildering rise of weird religious cults
espousing violence as an article of faith also proves the wisdom of our rule rejecting a strict let alone policy on the
exercise of religion. For sure, we shall continue to subject any act pinching the space for the free exercise of religion
to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion
divides and its exercise destroys, the State should not stand still.
It is also petitioner's submission that the respondent appellate court gravely erred when it affirmed the ruling of the
respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128. The records show that the respondent
Board disallowed the program series for "attacking" other religions. Thus, Exhibits "A," "A-1," (respondent Board's
Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for ". . . criticizing different religions,
based on their own interpretation of the Bible." They suggested that the program should only explain petitioner's ". . .
own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was x-rated because
"the Iglesia ni Cristo insists on the literal translation of the bible and says that our Catholic veneration of the Virgin
Mary is not to be condoned because nowhere it is found in the bible that we should do so. This is intolerance . . ."
Exhibit "C" shows that Series No. 121 was x-rated ". . . for reasons of the attacks, 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
. . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it ". . . outrages Catholic
and Protestant's beliefs." On second review, it was x-rated because of its "unbalanced interpretations of some parts of
the bible."18 In sum, the respondent Board x-rated petitioner's TV program series Nos. 115, 119, 121 and 128 because
of petitioner's controversial biblical interpretations and its "attacks" against contrary religious beliefs. The respondent
appellate court agreed and even held that the said "attacks" are indecent, contrary to law and good customs.
We 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. Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be
greeted with furrowed brows.19 It is the burden of the respondent Board to overthrow this presumption. If it fails to
discharge this burden, its act of censorship will be struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking" either religions,
especially the Catholic church. An examination of the evidence, especially Exhibits "A," "A-1," "B," "C," and "D"
will show that the so-called "attacks" 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. Yet they
were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from
public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of speech and
interferes with its right to free exercise of religion. It misappreciates the essence of freedom to differ as delineated in
the benchmark case of Cantwell v. Connecticut, so viz.: 20
xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been,
or are prominent in church or state or even to false statements. But the people of this nation have
ordained in the light of history that inspite of the probability of excesses 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 Board may disagree with the criticisms of other religions by petitioner but that gives it no
excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not
the task of the State to favor any religion by protecting it against an attack 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. Vis-a-
vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable
stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it
attacks other religions, even if said religion happens to be the most numerous church in our country. In 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 bedrock of freedom of religion is freedom of thought and
 it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite
speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating the religious
program of petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it is not among the grounds to
justify an order prohibiting the broadcast of petitioner's television program. The ground "attack against another
religion" was merely added by the respondent Board in its Rules. 21 This rule is void for it runs smack against the
hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they seek to
enforce.
It is opined that the respondent board can still utilize" attack against any religion" as a ground allegedly ". . . because
section 3 (c) of PD No. 1986 prohibits the showing of motion pictures, television programs and publicity materials
which are contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits "shows
which offend any race or religion." We respectfully disagree for it is plain that the word "attack" is not synonymous
with the word "offend." Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any religion. It cannot be utilized to justifyprior censorship of
speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included "attack against any religion" as a
ground for censorship. The ground was not, however, carried over by PD 1986. Its deletion is a decree to disuse it.
There can be no other intent. Indeed, even the Executive Department espouses this view.
Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the Senate, Neptali
Gonzales explained:
xxx xxx xxx
However, the question whether the BRMPT (now MTRCB) may preview and censor the subject
television program of INC should be viewed in the light of the provision of Section 3, paragraph (c)
of PD 1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No.
876-A, which prescribes the standards of censorship, to wit: "immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines or its people or with
dangerous tendency to encourage the commission of violence, or of a wrong" as determined by the
Board, "applying contemporary Filipino cultural values as standard." As stated, the intention of the
Board to subject the INC's television program to "previewing and censorship is prompted by the fact
that its religious program makes mention of beliefs and practices of other religion." On the face of the
law itself, there can conceivably be no basis for censorship of said program by the Board as much as
the alleged reason cited by the Board does not appear to he within the contemplation of the standards
of censorship set by law. (Emphasis supplied).
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule.
In American Bible Society v. City of Manila, 22 this Court held: "The constitutional guaranty of free exercise and
enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any
restraint of such right can be justified like other restraints on freedom of expression on the ground that there is aclear
and present danger of any substantive evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope
Workers Union, 23 we further ruled that ". . . it is only where it is unavoidably necessary to prevent animmediate and
grave danger to the security and welfare of the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary to avoid the danger."
The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is
completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible
attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken
the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule to the case at bar. In the United
States, it is true that the clear and present danger test has undergone permutations. It was Mr. Justice Holmes who
formulated the test in Schenck v. US,24 as follows: ". . . the question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent." Admittedly, the test was originally designed to determine the
latitude which should be given to speech that espouses anti-government action. Bannered by Justices Holmes and
Brandeis, the test attained its full flowering in the decade of the forties, when its umbrella was used to protect
speech other than subversive speech.25 Thus, for instance, the test was applied to annul a total ban on labor
picketing. 26 The use of the test took a downswing in the 1950's when the US Supreme Court decidedDennis v. United
States involving communist conspiracy. 27 In Dennis, the components of the test were altered as the High Court
adopted Judge Learned Hand's formulation that ". . . in each case [courts] must ask whether the gravity of the 'evil,'
discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." The
imminence requirement of the test was thus diminished and to that extent, the protection of the rule was weakened. In
1969, however, the strength of the test was reinstated in Brandenburg v. Ohio,28 when the High Court restored in the
test the imminence requirement, and even added an intent requirement which according to a noted commentator
ensured that only speech directed at inciting lawlessness could be punished.29 Presentlyin the United States, the clear
and present danger test is not applied to protect low value speeches such as obscene speech, commercial speech and
defamation. Be that as it may, the test is still applied to four types of speech: speech that advocates dangerous ideas,
speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a
fair trial. 30 Hence, even following the drift of American jurisprudence, there is reason to apply the clear and present
danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and disturb tenribly.
It 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 overlooks the fact that the case at bar involves videotapes that are pre-taped and
hence, their speech content is known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can determine whether its sulphur will bring
about the substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of the question as to whether or not such
vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is
a judicial function which cannot be arrogated by an administrative body such as a Board of Censors." He submits that
a "system of prior restraint may only be validly administered by judges and not left to administrative agencies. "The
same submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its seedbed was laid down
by Mr. Justice Brennan in his concurring opinion in the 1962 case of Manual Enterprise v. Day 31 By 1965, the US
Supreme Court in Freedman v. Maryland32 was ready to hold that "the teaching of cases is that, becauseonly a judicial
determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression only a procedure
requiring a judicial determination suffices to impose a valid final restraint." 33
While 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 quasi-judicial power to preview and classify TV programs and enforce its decisionsubject to
review by our courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz, 34 viz.:
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. Persons posses no absolute right to put into the mail anything they please,
regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise
of executive power, is extremely delicate in nature and can only be justified where the statute is
unequivocably applicable to the supposed objectionable publication. In excluding any publication for
the mails, the object 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 question. In order for there to be due process of law, the action of the Director of Posts must be
subject to revision by the courts in case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727;
Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916]. 23 -
Fed., 773)
 As has been said, the performance of the duty of determining whether a publication contains printed
matter of a libelous character rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every 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 United States Supreme Court and pertaining
to the United States Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904],
194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246
Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine
and relied upon by the Attorney-General).
To be sure, legal scholars in the United States are still debating the proposition whether or not courts aloneare
competent to decide whether speech is constitutionally protected. 35 The issue involves highly arguable policy
considerations and can be better addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it
sustained the jurisdiction of the respondent MTRCB to review petitioner's TV program entitled "Ang Iglesia ni
Cristo," and is reversed and set aside insofar as it sustained the action of the respondent MTRCB x-rating petitioner's
TV Program Series Nos. 115, 119, and 121. No costs.
SO ORDERED.
Regalado, Davide, Jr., Romero and Francisco, JJ., concur.
Narvasa, C.J., concurs in the result.

Separate Opinions

PANGANIBAN, J., concurring:

I think the basic issues in this case are:
A. What is the statutory extent and the constitutional limitation of the powers of the Movies and Television Review
and Classification Board (MTRCB)? More specifically, does the MTRCB have the power to prohibit/ censor
television shows?
B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent Board exercise its
powers correctly and properly?
The first question deals with the general legal concepts and principles underlying the functions and prerogatives of the
MTRCB while the second calls for a juridical evaluation of the specific act of the Board in classifying as "X" (or not
for public viewing) specific pre-taped or canned programs, identified as Series 115, 119, 121 and 128, for the reason
that they allegedly constituted an "attack against another religion." The first involves doctrine; the second, application.
A. EXTENT AND LIMIT OF
MTRCB'S POWERS
The statutory powers of the MTRCB are set forth in Sec. 3 of P.D.
1986.1
In implementing P.D. 1986. the MTRCB issued its own Rules and Regulations. At issue in this case is Section 4 2 of
such Rules.
On the other hand, these statutory powers and internally generated regulations are limited by the Bill of Rights. Art.
III of the 1987 Constitution, particularly the rights to free speech and religion.
Mr. Justice Mendoza connects the above constitutional rights with the present controversy by saying that "expression .
. . by means of television broadcast is included in the free speech and free press guarantee of the Constitution" and by
Mr. Justice Kapunan by writing that this "case uniquely interphases questions of religious expression and censorship
laws in the context of the constitution's guarantees of freedom of religion and of speech and expression."
Here before us therefore is a classic constitutional law case wherein the inherent power of the state to safeguard the
peace, well-being and general welfare of the people collide and clash with the constitutional rights of individuals and
religious institutions to evangelize, preach, promote, teach, and even proselytize.
Religious Freedom -- A Cherished Right
FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a preferred status by the framers of
our fundamental laws, past and present." Religious freedom is absolute when it is confined within the realm of
thought to a private, personal relationship between a man's conscience and his God, but it is subject to regulation
when religious belief is transformed into external acts that affect or afflict others. The mere invocation of religious
freedom will not stalemate the State and ipso facto render it incompetent in preserving the rights of others and in
protecting the general welfare.
MTRCB's Power to Review and to Censor is Valid
SECOND, I believe that as an agency of the State created to promote the general welfare, the MTRCB under P.D.
1986 has the basic initiatory authority and power to -
"approve or disapprove,
delete objectionable portion from
and/or prohibit
the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television
broadcast" of pre-taped or canned (as contra-distinguished from "live") video-audio/film/television programs
and publicity materials. I regret I cannot go along with Mr. Justice Mendoza's avante garde thesis that Section
3-c of P.D. 1986, from where the above-quoted words were taken, is "upon its face and as applied,
unconstitutional." I note the extensive materials, particularly from American cases, buttressing his cogent
stand, but, after reflection, prayer and discernment. I am thoroughly convinced that the situation in our
country, particularly the totality of our cultural and religious milieu is far different from that in America.
Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials but not to religious
programs, particularly those of INC, which it claims are neither "immoral" nor "indecent". This position presents more
problems than solutions. For who will determine whether a given canned material is religious or not, and therefore
whether it can be publicly exhibited or not without its passing through the Board? I would prefer that the State, which
is constitutionally mandated to be neutral, continue to exercise the power to make such determination, rather than
leave it up to the producer, maker or exhibitor of such material, who/which, because of vested interests would, in the
normal course, be understandably biased in his/its own favor. I feel less discomfort with the idea of maintaining the
censors' quasi-judicial authority to review such film materials, subject to appeal to the proper courts by aggrieved
parties, than with the prospect and consequences of doing away with such power altogether. I agree with Mr. Justice
Vitug in finding "it more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be
contrary to decency, morality, good custom or the law until, at least, the courts are given an opportunity to pass upon
the matter . . ." A contrary ruling would most regrettably remove meaningful and necessary safeguards against a
veritable floodtide of prurient, violence-prone and values-eroding television shows and programs.
In Gonzales vs. Kalaw Katigbak4 and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,5 this Court early on
acknowledged the uniquely pervasive presence of broadcast and electronic media in the lives of everyone, and the
easy accessibility of television and radio to just about anyone, especially children. Everyone is susceptible to their
influence, even "the indifferent or unwilling who happen to be within reach of a blaring radio or television set."6 And
these audiences have less opportunity to cogitate, analyze and reject the utterances, compared to readers of printed
material.7 It is precisely because the State as parens patriae is "called upon to manifest an attitude of caring for the
welfare of the young"8 that I vote for the retention of the State's power of review and prohibition via the MTRCB.
High-minded idealism in the staunch defense of the much-vaunted freedoms cannot but be admired. Yet, no matter
how devoutly we may wish it, not all the people share the same mindset and views nor, needless to say, the same
viewpoint, i.e., the ivory tower window. Hence, we must prudently anticipate that abuses against the public weal are
likely to be committed where absolute permissiveness is the norm. Would that, with the total absence of censorship or
review, there occur a significant increase in religious, spiritual or morally uplifting prime-time programming! But
realistically and pragmatically speaking, we see mostly the prospect of more explicit sex-oriented advertising,
unadulterated violence and outright pandering to phone-sex addicts and the simply curious. The fact that even the Net
is not free of pornographic slime is no excuse to let down all reasonable barriers against broadcast media offerings of
muck, moral depravity and mayhem. And definitely, there is no good and sensible reason for the State to abdicate its
vital role as parens patriae, in the guise of copying American constitutional precedents, which I respectfully submit,
are inapplicable in our factual context and time.
MTRCB Must Use Constitutional Standard
THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must act prudently. And it
can do so ONLY if it exercizes its powers of review and prohibition according to a standard and/or a limit.
I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck down as an
unconstitutional standard. This is martial law vintage and should be replaced with the more libertarian "clear and
present danger rule" which is eloquently esplained by JJ. Kapunan, Puno and Mendoza (and which explanation I shall
not repeat here).
Having said that, may I respectfully point out however that there is an even more appropriate standard in
thePhilippine context proffered by the law itself, and that is "contemporary Philippine cultural values." This standard
under the law, should be used in determining whether a film or video program is "(a) immoral, (b) indecent, (c)
contrary to law and/or good custom, and (d) injurious to the prestige of the Republic of the Philippines or its people."
On the other hand, when the question is whether the material being reviewed "encourages the commission of violence
or of a wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger" principle should be
applied as the standard in place of the "dangerous tendency" rule.
Just a word edgewise about cultural values. Our cultural ideals and core values of galang, pagbabahala, pananagutan,
balikatan, malasakit, asal, halaga, diwa, damdamin, dangal, kapwa, pakikitungo, hiya, delikadesa, awa, tiwala,
maka-Diyos, maka-tao, maka-buhay and so forth, define us as a people, as Filipinos. We are who and what we are
because of these values and ideals. They delimit the areas of individual and social behavior and conduct deemed
acceptable or tolerable, and ultimately they determine the way we as individuals uniquely conduct our relationships
and express ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to religious thought
and expression will permit an "overarching" into a constitutionally protected area, and provides the MTRCB with a
veiled excuse for clamping down against unorthodox religious thought and expression. But such fear is highly
speculative and totally unsupported by empirical evidence. I would like to add that where a mode of religious
expression runs counter to such core values, serious questions have to be raised about the ultimate redeeming worth of
such expression. An example is in order. Not too long ago, the so-called "Children of God" blew into town, and, under
the guise of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply sit on our hands if
these "Children" were to telecast their religious programs for OUR children to watch, or conduct seminars over the
airwaves on the hows of free sex . . . Another example: satanic cults involve blood sacrifices . . . In brief, I am in
agreement with the ponencia that the practice of religion cannot be totally abandoned to the market place and
governed by the policy of laissez faire.
Validity of MTRCB's Internal Rule
FOURTH. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to prohibit the
showing of materials "which clearly constitute an attack against any race, creed or religion . . .", I agree with Mr.
Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be read together with other existing laws such as,
for instance, the provisions of the Revised Penal Code, particularly Article 201, which prohibit the exhibition of
shows that 'offend another race or religion.'" Indeed, where it can be shown that there is a clear and present danger that
a religious program could agitate or spark a religious strife of such extent and magnitude as to be injurious to the
general welfare, the Board may "X-rate" it or delete such portions as may reasonably be necessary. The debilitating
armed conflicts in Bosnia, Northern Ireland and in some Middle East countries due to exacerbated religious
antagonisms should be enough lesson for all of us. Religious wars can be more ravaging and damaging than ordinary
crimes. If it is legal and in fact praiseworthy to prevent the commission of, say, the felony of murder in the name of
public welfare why should the prevention of a crime punishable by Art. 201 of the Penal Code be any less legal and
less praiseworthy.
I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans shows which "attack" a
religion, whereas Art. 201 merely penalize; those who exhibit programs which "offend" such religion. Subject to
changing the word "attack" with the more accurate "offend". I believe Section 4 of the Rules can stand.
In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or interpretation) of the
words "dangerous tendency" with the phrase (or as meaning) "clear and present danger" in Sec. 3-c: and (2) that Sec.
4 of the Board's Rules would be likewise valid, providcd the words "constitute an attack" are changed with "offend"
B. WAS THE BANNING OF THE IGLESIA
PROGRAMS PROPER?
We now come to the immediate question: Did the respondent Board correctly apply Section 3 of P.D. 1986 in
prohibiting the public telecasting of the Iglesia program. In short, did the INC series "offend" a religion? Juridically
stated, did the respondent MTRCB use "contemporary Filipino cultural values" in determining that said series
offended another religion such as to constitute a clear and present danger of a religions strife which is injurious to
public welfare? [Note: I advisedly used both the "values" and "clear and present" standards in framing the question
because the INC program was apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a
"crime".]
Unfortunately, we cannot answer this question directly because the tape in question was never submitted to the Court
for viewing. Neither was there a detailed description of its objectionable contents in the assailed Decision of the Court
of Appeals or Regional Trial Court. Nor is there extant a detailed justification prepared by respondent Board on why it
banned the program - other than its bare conclusion that the material constituted an attack against the Catholic and
Protestant religions.
In no wise can the "remarks" in the voting slips presented before the trial court be considered sufficient justification
for banning the showing of any material.
In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize a suppression of a
species of the freedom of speech on the say-so of anyone - not even of the MRTCB. Paraphrasing People
v.Fernando,9 the disputable presumption (which is of statutory origin) that official duties have been regularly
performed must yield to the constitutionally enshrined freedoms of expression and of religion. If courts are required to
state the factual and legal bases of their conclusions and judicial dispositions, with more reason mustquasi-
judicial officers such as censors, especially when they curtail a fundamental right which is "entitled to the highest
priority and amplest protection."
FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify its conclusion
thru the use of the proper standards that the tapes in question offended another religion, I vote to GRANT the petition
insofar as it prays for the showing of said programs. However, I vote to DENY the petition insofar as allowing the
INC to show its pretaped programs without first submitting them forreview by the MTRCB.

PADILLA, J., concurring and dissenting:

I concur with the majority opinion insofar as it removes the ban against the showing of petitioner's TV Program Series
Nos. 115, 119 and 121. However, I disagree with that part of the majority opinion which upholds the power of
respondent Board to subject to prior restraint petitioner's religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there can be no prior restraints on
the exercise of free speech expression or religion unless such exercise poses a clear and present danger of a
substantive evil which the State has the right and even the duty to prevent. The ban against such prior restraints will
result, as it has resulted in the past, in occasional abuses of free speech and expression but it is immeasurably
preferable to experience such occasional abuses of speech and expression than to arm a governmental administrative
agency with the authority to censor speech and expression in accordance with legislativev standards which albeit
apparently laudable in their nature, can very well be bent or stretched by such agency to convenient latitudes as to
frustrate and eviscerate the precious freedoms of speech and expression.
Besides, any person who may feel aggrieved by the exercise of free speech, expression and religion, is afforded, under
our system, the remedy of redress in the courts of law, justice and equity.
In short, it is far better for the individual to live in a climate of free speech and free expression, devoid of prior
restraints, even at the risk of occasional excesses of such freedoms than to exist in an ambiance of censorship which is
always a step closer to autocracy and dictatorship.
MENDOZA, J., concurring:
I concur in the decision to allow the showing of certain video tapes of petitioner's program, "Ang Iglesia Ni Cristo,"
and for this purpose to reverse the contrary ruling of the Court of Appeals. I am constrained to file this separate
opinion, however, because, while the majority opinion invokes general principles of free speech and religion to which
I subscribe, it regrettably fails to apply these principles to the law (P.D. No. 1986 and its implementing rules) under
which the Board has acted.
My position will be spelled out presently but, in brief, it is this: Censorship may be allowed only in anarrow class of
cases involving pornography, excessive violence, and danger to national security. Even in these cases, only courts can
prohibit the showing of a film or the broadcast of a program. In all other cases, the only remedy against speech which
creates a clear and present danger to public interests is through subsequent punishment. Considering the potentiality
for harm which motion pictures and TV programs may have especially on the young, all materials may validly be
required to be submitted for review before they may be shown or broadcast. However, the final determination of the
character of the materials cannot be left to an administrative agency. That judicial review of administrative action is
available does not obviate the constitutional objection to censorship. For these reasons, I would hold §3(b) of P.D. No.
1986, which gives to the Board limited time for review, to be valid, while finding §3(c), under which the Board acted
in this case in censoring petitioner's materials, to be, on its face and as applied, unconstitutional.
I. "At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship or punishment. There is to be . . . no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages,
or contempt proceedings, unless there be a clear and present danger of substantive evil that Congress has a right to
prevent."1 "Because of the preferred character of the constitutional rights of freedom of speech and expression, a
weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms."2
Authoritative interpretations of the free speech clause consider as invalid two types of prior restraints, namely, those
which are imposed prior to the dissemination of any matter and those imposed prior to an adequate determination that
the expression is not constitutionally protected. As the Wisconsin Supreme Court put the matter, "[A] prohibited "prior
restraint" is not limited to the suppression of a thing before it is released to the public. Rather, an invalid prior restraint
is an infringement upon the constitutional right to disseminate matters that are ordinarily protected by the first
amendment without there first being a judicial determination that the material does not qualify for first amendment
protection."3
Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions Pty. Ltd. v. Capulong,4 we
held that an injunction stopping the production of a documentary film was an invalid prior restraint on freedom of
speech and of expression. In Mutuc v. COMELEC,5 we struck down, also as an invalid prior restraint, a COMELEC
rule prohibiting the use in political campaigns of taped jingles blared through loudspeakers which were mounted on
mobile units. "[T]he constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but
not perpetuating what is uttered by him through tape or other mechanical contrivances."6
On the other hand, the fact that the material may have seen print or been taped, as in the case of the TV series in
question, cannot justify restriction on its circulation in the absence of a judicial determination that the material does
not constitute protected expression. In Sotto v. Ruiz, we denied finality to the authority of the Director of Posts to
exclude newspapers and other publications from the mails "since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due process of law, the action of the Director of Posts must be
subject to revision by the courts in case he has abused his discretion or exceeded authority."8
II. P.D. No . 1986, §3(b) requires motion pictures, television programs and publicity materials to be submitted to the
Board for review, while §7 makes it unlawful for any person or entity to exhibit or cause to be exhibited in any
moviehouse, theater or public place or by television any motion picture, television program or publicity material
unless it has been approved by the Board. Anyone who violates the prohibition is liable to prosecution and, in case of
conviction, to punishment by imprisonment ranging from 3 months and 1 day to 1 year, plus a fine of not less than
P50,000.00 but not more than P100,000.00. In addition, the moviehouse, theater or television station violating the
provision faces a revocation of its license.9
In Burstyn v. Wilson,10 it was held that expression by means of motion pictures -- and, it may be added, by means of
television broadcasts - is included in the free speech and free press guarantee of the Constitution. This ruling is now
part our constitutional law, which has assimilated into the constitutional guarantee not only motion pictures but also
radio and television shows because of the importance of movie, radio and television both as a vehicle of
communication and as a medium of expression.11
Does §3(b) impermissibly impose a prior restraint because of its requirement that films and TV programs must be
submitted to the Board for review before they can be shown or broadcast? In my view it does not. The Burstyncase, in
declaring motion pictures to be protected under the free expression clause, was careful to add: "It does not follow that
the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places . . .
Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular
method of expression. Each method tends to present its own peculiar problems."12 With reference to television, this
Court is on record that "a less liberal approach calls for observance. This is so because unlike motion pictures where
patrons have to pay their way, television reaches every home where there is a [TV]
set. Children then will likely be among the avid viewers of programs therein shown. . . . [T]he State as parens
patriae is called upon to manifest an attitude of caring for the welfare of the young."13
While newspapers may not be required to submit manuscripts for review as a condition for their publication, except
during wartime, such a requirement is justified when applied to motion pictures or television programs (other than
newsreels and commentaries) because of unique considerations involved in their operation. "First, broadcast media
have established a uniquely pervasive presence in the livesof all citizens. Material presented over the airwaves
confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to
children. Bookstores and motion picture theaters may be prohibited from making certain material available to
children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly
tuning in and out."14 The State may thus constitutionally require the advance submission of all films and TV programs
as a means
of enabling it effectively to bar the showing of unprotected films and TV programs.15
For these reasons, I hold §3(b) to be a valid exercise of the State's power to protect legitimate public interests. The
purpose of this restraint - temporary in character -- is to allow the Board time to screen materials and to seek an
injunction from the courts against those which it believes to be harmful.
III. I reach a different conclusion, however, with respect to §3(c). This provision authorizes the Board to prohibit,
among other things, the exhibition or broadcast of motion pictures, television programs and publicity materials which,
in its opinion, are "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or [which have] a dangerous tendency to encourage the commission of violence or of
a wrong or crime," such as the following:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or
otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people in their government and/or
the duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether
living or dead; and
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to
matters which are sub judice in nature.
Under this authority, the Board can determine what can be shown or broadcast and what cannot. It is not true, as the
Board claims, that under P.D. No. 1986 its power is limited to the classification of motion pictures and TV programs.
The power to classify includes the power to censor. The Board can x-rate films and TV programs and thus ban their
public exhibition or broadcast. And once it declares that a motion picture or television program is, for example,
indecent or contrary to law, as in the case of the INC program in question, its declaration becomes the law. Unless the
producer or exhibitor is willing to go to court, shouldering not only the burden of showing that his movie or television
program is constitutionally protected but also the cost of litigation, the ban stays.16 This is censorship in its baldest
form. This is contrary to the fundamental tenet of our law that until and unless speech is found by the courts to be
unprotected its expression must be allowed.
In an effort to save this provision from constitutional attack, it is alleged that the TV program in question was
disallowed pursuant to the rules of the Board which prohibit the showing of motion pictures or TV programs
containing "malicious attack[s] against any race, creed or religion." It is contended that this rule impermissibly
broadens the prohibition in §3(c), because this ground ("malicious attack[s] against any race, creed or religion") is not
among those provided therein.
However, §3(c) gives the Board authority to stop the showing of motion pictures, television programs and publicity
materials which are "contrary to law," and Art. 201(2) (b) (3) of the Revised Penal Code makes it a crime for anyone
to exhibit "shows which offend any race or religion." It is true that Art. 201 (2) (b) (3) refers to subsequent
punishment, whereas we are dealing here with prior restraint. However, by authorizing the censorship of materials
which in the opinion of the Board are "contrary to law," §3(c) makes what is only a ground for subsequent punishment
also a ground for prior restraint on expression. It is §3(c) of P.D. No. 1986, and not only the rules implementing it,
which is unconstitutional.17
While I think the Board may be granted the power to preview materials, it is only for the purpose of enabling the
Board to decide whether to seek their prohibition by the court in the interest of safeguarding morality, good order and
public safety, considering the pervasive influence of broadcast media compared to that of the print media. But concern
with possible deleterious effects of movies and television shows cannot and should not be allowed to overshadow the
equally important concern for freedom of expression and blind us to the danger of leaving the ultimate determination
of what expression is protected and what is not to a board of censors. The protection of the youth should be in the first
place the concern of parents, schools and other institutions. I do not think that society is so morally impoverished that
we have to draw on a group of censors for ultimate moral lesson and leading.
If we have to call on the assistance of any agency at all, it must be the courts.18 There are many reasons why a system
of prior restraint (in those cases where it may validly be imposed) may only be administered by judges. First is that
the censor's bias is to censor. Second is that "only a determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression."19 As has been observed, "Central to the first amendment due process is the
notion that a judicial rather than an administrative determination of the character of the speech is necessary. . . .
[C]ourts alone are competent to decide whether speech is constitutionally protected."20 Third, the members of the
Board do not have the security of tenure and of fiscal autonomy necessary to secure their independence.
Indeed, I cannot understand why, after ruling that the valuation of property in eminent domain is essentially a judicial
function which cannot be vested in administrative agencies,21 this Court should be willing to leave the valuation of
that priceless commodity - expression, whether by means of motion picture or television - to administrative agencies
with only occasional review by the courts. The trend may be toward greater delegation of judicial authority to
administrative agencies in matters requiring technical knowledge and as a means of relieving courts of cases which
such agencies can very well attend to. 22 There is no justification, however, for such delegation in the area of our
essential freedoms, particularly freedom of expression, where "only a judicial determination in an adversary
proceeding [can] ensure the necessary sensitivity to freedom of expression."23
We have witnessed such distinct possibility in the past to need any more lesson in the future to make us realize the
danger of leaving freedom of expression and religion - the essential freedom of the mind - in the care of an
administrative agency.
To the extent therefore that P.D. No. 1986, §3(c) vests in the Board the final authority to determine whether expression
by motion picture or television is constitutionally protected, I find it unconstitutional.
IV. The majority limit themselves to a determination of the correctness of the Board's finding that the video tapes in
question contain attacks on the Catholic religion, I find it difficult to pass upon this question because the contents of
the tapes are not in the record of this case.24 The trial court ruled that the tapes contain no attack against any religion
but only a discussion of the doctrines which the Iglesia Ni Cristo believes embody "superior and self evident truth."
On the other hand, the Court of Appeals, in reversing the trial court, found that the tapes "offend by verbal abuse other
religions" and are for that reason "indecent and contrary to good customs" within the meaning of P.D. No, 1986, §3(c).
Neither court, however, had any evidence to support its conclusions, because this case was submitted by the parties
solely on the basis of memoranda. What the majority of this Court call facts (pp. 16-17) are simply the opinions of
members of the Board that the video tapes contain attacks on the Catholic religion.
There are no facts on which to base judgment on this question. Even if there are, the clear and present danger test is
inapplicable. To be sure, in Gonzales v. Kalaw Katigbak this Court said:
 [W]here the movies, theatrical productions, radio scripts, television programs, and other such media
of expression are concerned -- included as they are in freedom of expression - censorship, especially
so if an entire production is banned, is allowable only under the clearest proof of a clear and present
danger of a substantive evil to public safety, public morals, public health or any other legitimate
public interest.25
The clear and present danger test has been devised for use in criminal prosecutions for violations of laws punishing
certain types of utterances.26 While the test has been applied to the regulation of the use of streets and
parks27 -- surely a form of prior restraint - its use in such context can be justified on the ground that the content of the
speech is not the issue. But when the regulation concerns not the time, place or manner of speech but its content (i.e.,
it is content-based) the clear and present danger test simply cannot be applied. This is because a determination
whether an utterance has created a clear and present danger to public interests requires a factual record.
The test itself states that the question in every case is "whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has
a right to prevent." 28 However it may have been reformulated in later cases, the test essentially requires that the
causal connection between the speech and the evil apprehended be evident.29 But how can this be shown unless the
speech is first allowed? It is not enough that the tapes have been made and only their broadcast banned. What about
the audience reaction to the tapes? Even if we know what the tapes in this case contain, we cannot determine whether
their public broadcast would create a clear and present danger to public interests. The censorship board, trying to
determine whether to issue a permit, must necessarily speculate on impact which the words will have since the context
in which they will be uttered - the audience, the occasion, and the place - is totally lacking in the record. It is then
forced to apply a lesser standard of proof in deciding whether to impose a restraint on speech.
The majority claim that there is no need for a factual record in order to find that the Board in this case exceeded its
powers in disallowing the TV series in question. They argue that "acts of prior restraint are hobbled by the
presumption of invalidity and should be greeted with furrowed brews. It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this heavy burden, its act of censorship will be struck down. . . . In
the case at bar, respondent board did nothing to rebut the presumption." (p. 17)
That, however, is precisely the problem with the censorship law. It in effect places on the producer or exhibitor the
burden of going to court and of showing that his film or program is constitutionally protected. To paraphrase Sotto
v. Ruiz, which the majority cite as authority for sustaining the validity of §3(c), "Every intendment of the law is in
favor of the correctness of [the agency's] action."30 The Board would have this burden of justification if, as I believe it
should, is made to go to court instead and justify the banning of a film or TV program. That is why §3(c) should be
invalidated. One cannot defend the validity of the law and at the same time contend that in any court proceeding for
the review of the Board's decision the burden of justifying the ban should be on the Board.
The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the standard for judging the validity of
prior restraint on political expression is stricter than that for adjudging restraints on materials alleged to be obscene,
but not that the test of clear and present danger is applicable in determining whether or not a permit may be granted.
In Gonzales v. Kalaw Katigbak31 this Court echoed Justice Douglas's plea that "every writer, actor, or producer, no
matter what medium of expression he may use, should be freed from the censor." For indeed the full flowering of
local artistic talents and the development of the national intelligence can take place only in a climate of free
expression. A film producer, faced with the prospect of losing on his investment as a result of the banning of his movie
production, may well find himself compelled to submit to the wishes of the Board or practice self-censorship. The
expression of unpopular opinions, whether religious, political or otherwise is imperilled under such a system.
We have long ago done away with controls on the print media, it is time we did the same with the control on broadcast
media, which for so long operated under restraints,32 leaving the punishment for violations of laws to be dealt with by
subsequent prosecution.
For the foregoing reasons, I vote to declare §3(2) of P.D. No. 1986 unconstitutional and to reverse the decision of the
Court of Appeals, except in so far as it sustains the grant of power to the Board to preview materials for showing or
broadcast, consistent with my view that §3(b) is valid.

MELO, J., concurring and dissenting:

The enjoyment of the freedom of religion is always coupled with the freedom of expression. For the profession of
faith inevitably carries with it as a necessary appendage, the prerogative of propagation. The constitutional guaranty of
free exercise and enjoyment of religious profession and worship thus denotes the right to disseminate religious
information (American Bible Society vs. City of Manila 101 Phil. 386 [1957]). Any prior restriction upon a religious
expression would be a restriction on the right of religion. We recognize the role and the deep influence that religion
plays in our community. No less than the fundamental law of the land acknowledges the elevating influence of
religion by imploring the aid of almighty God to build a just and humane society. Any restriction that is to be placed
upon this right must be applied with greatest caution.
Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established religious organization has been well
with us for almost a century, with several millions of following quite a number of imposing and elegantly constructed
cathedrals and hundreds of chapels spread in many parts of the country, injecting profound influence not only in the
social and political aspect of the community but upon its moral values as well. Respect must be afforded a well-
established church, especially on matters concerning morality and decency lest no concept of morality could ever be
accepted with deference. Such preeminence in the community deserves no less than the confident expectation that it
will act in accordance with its avowed mission of promoting religious guidance and enlightenment. Its religious
programs must be accorded the presumption that the same will instill moral values that would be beneficial to its
adherents and followers, and perhaps to the community in general. The contrary must not be presumed. Its television
programs, therefore, should not be equated with ordinary movies and television shows which MTRCB is bound by the
law to monitor for possible abuse. One must recognize the power of State to protect its citizenry from the danger of
immorality and indecency motivated by the selfish desire of media entrepreneurs to accumulate more wealth, or of
bogus religious groups, for that matter, to mislead and beguile the unlettered and uninformed. But considering all
these circumstances, I see no cogent reason for the application of such power to the present case.
Freedom of religion and expression is the rule and its restriction, the exception. Any prior restriction on the exercise of
the freedom to profess religious faith and the propagation thereof will unduly diminish that religion's authority to
spread what it believes to be the sacred truth. The State can exercise no power to restrict such right until the exercise
thereof traverses the point that will endanger the order of civil society. Thus we have ruled in the case of Ebralinag
vs. The Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to
public safety, public morals, public health or any other legitimate public interest that the state has the
right and duty to prevent.
Correspondingly, the MTRCB has no authority to use as standard, the dangerous tendency rule, which we have long
abandoned and for which reason, the dangerous tendency standard under Subparagraph C, Section 3 of Presidential
Decree No. 1986 has no place in our statute books.
I therefore, vote to grant the petition.

VITUG, J., dissenting:

I agree with those who support the view that religious freedom occupies an exalted position in our hierarchy of rights
and that the freedom to disseminate religious information is a constitutionally-sanctioned prerogative that allows any
legitimate religious denomination a free choice of media in the propagation of its credo. Like any other right,
however, the exercise of religious belief is not without inherent and statutory limitations.
The Board disapproved the exhibition of a series of television programs of petitioner on the ground that they tend to
"offend and constitute an attack against other religions." An opinion has been expressed that the non-inclusion in
Section 3 of P.D. 1986 of an "attack against any religion," as a standard for classification, and so the deletion of the
phrase "offensive to other religions" found in the old censorship law (Executive Order No. 876), should be clear
enough to manifest a legislative intent "to do away with the standard." A reading of Section 3 of P.D. 1986 shows that
the Board is empowered to "screen, review and examine all . . . television programs" and to "approve or disprove,
delete objectionable portion from and/or prohibit the . . . television broadcast of . . . television programs . . . which, in
the judgment of the BOARD (so) applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs . . . ." I believe that the phrase "contrary to law" should
be read together with other existing laws such as, for instance, the provisions of the Revised Penal Code, particularly
Article 201, which prohibits the exhibition of shows that "offend another race or religion." I see in this provision a
good and sound standard. Recent events indicate recurrent violent incidents between and among communities with
diverse religious beliefs and dogma. The danger is past mere apprehension; it has become a virtual reality and now
prevalent in some parts of the world.
In order not to infringe constitutional principles, any restriction by the Board must, of course, be for legitimate and
valid reasons. I certainly do not think that prior censorship should altogether be rejected just because sanctions can
later be imposed. Regulating the exercise of a right is not necessarily an anathema to it; in fact, it can safeguard and
secure that right.
When I particularly ponder on the magnitude of the power of a television set, I find it more prudent to have a
deferment of an exhibition that may be perceived to be contrary to decency, morality, good customs or the law until, at
least, the courts are given an opportunity to pass upon the matter than rely merely on the availability of retribution for
actual injury sustained. A delay is not too high a price to pay for a possible damage to society that may well tum out to
be incalculable and lasting.
In this instance, I vote for the dismissal of the petition.

KAPUNAN, J., concurring and dissenting:

While I concur in the result of the majority's decision reversing that of the Court of Appeals insofar as it set aside the
action of respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119 and 121, with due respect, I
cannot agree with its opinion that respondent Board of Review for Motion pictures and Television (now MTRCB) has
the power to review petitioner's TV program "Ang Iglesia ni Cristo." The religious TV program enjoys the
Constitution's guarantee of freedom of religion,1 and of speech and
expression.,2 and cannot be subject to prior restraint by the Board by virtue of its powers and functions under Section
3 of P.D. 1986 which provides as follows:
Sec. 3. Powers and Functions. -- The BOARD shall have the following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for
general viewing, imported or produced in the Philippines, and in the latter case, whether they be for
local viewing or for export.
c) To approve or disapprove, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of
the motion pictures, television programs and publicity materials subject of the preceding paragraph,
which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent, contrary to law and/or good customs, Injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage
the commission of violence or of a wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence and
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and,
 vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are subjudice in nature.
Under the aforequoted provisions, the MTRCB, while nominally a classification board, is granted the power not only
to classify, but also to approve or disapprove/prohibit exhibition of film or television broadcasts of motion pictures
and TV programs.
The freedom to disseminate religious information is a right protected by the free exercise clause of the Constitution. It
encompasses a wide range of ideas and takes many forms. In the process of enlightening the adherents or convincing
non-believers of the truth of its beliefs, a religious sect or denomination is allowed the free choice of utilizing various
media, including pulpit or podium, print, television film, and the electronic mail.
The broad latitude of freedom afforded by the free exercise clause is an historic outgrowth of our country's twin
colonial experiences: our forefathers' aversion against the Spanish colonial government's interference with religious
belief and practice and the transplantation of American Constitutional thinking into the mainstream of our political
life, which brought with it the ideas of Protestant dissent and humanistic rationalism dominant in the debates of the
American Constitutional Convention. These two poles conjoined to place the individual conscience beyond the
coercive power of government. Involving as it does the relationship of man to his Creator, respect for the inviolability
of conscience lay at the core of the free exercise clauses in our Constitutions from 1935 to 1987.3
It is, therefore, settled that religious freedom is a fundamental right entitled to the highest priority and amplest
protection among human rights. Because of its exalted position in our hierarchy of civil rights, the realm of religious
belief is generally insulated from state action, and state interference with such belief is allowed only in extreme cases.
Free exercise encompasses all shades of expression of religious belief. It includes the right to preach, proselyte and to
perform other similar functions.4 As oftentimes these aspects of the free exercise clause fall within areas affected by
government regulation, the importance of religious freedom is such that the state must make special provisions to
relieve religious liberty from restrictions imposed by generally legitimate government regulations5Commenting on
religious freedom and other freedoms of conscience, this Court held in Reyes v. Bagatsing6 that:
[O]n the judiciary -- even more so than on the other departments -- rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course dispense with what has been felicitously termed by Justice Holmes
"as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of such rights.7
Even before film and television achieved the power and influence it has gained in the last few decades, the U.S.
Supreme Court, in the case of Burtsyn v. Wilson,8 conceded that movies were a significant medium for the
dissemination of ideas, affecting "public attitudes and behavior in a variety of ways, ranging from the direct espousal
of a political or social doctrine to the subtle shaping of thought which characterizes artistic expression."9The U.S.
Supreme Court emphasized that the significance of motion pictures as an organ of public opinion is not diluted by the
fact that films are "designed to entertain as well as to inform," 10 thus, recognizing that motion pictures fell within the
sphere of constitutionally protected speech and expression. Responding to the question of censorship in the context of
film as protected expression, the U.S. Supreme Court, in the case of Freedman v. Maryland 11 held that:
The administration of a censorship system for motion pictures presents peculiar dangers to
constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts
the initial burden on the exhibitor or distributor. Because the censor's business is to censor, there is an
inherent danger that he may be less responsive than a court part of an independent branch of
government -- to constitutionally protected interests in free expression.12
In American Bible Society v. City of Manila,13 this Court held that any restraint on the right to disseminate religious
information "can only be justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent."14 Affirming the use of this "clear and
present danger" standard in cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee
warned that "[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent."15
Religious freedom is not of course an absolute right. However, given its exalted position in our hierarchy of civil
rights, the essence of all that has been said and written about the subject is that only those interests of the highest order
and those not otherwise served can overbalance claims to free exercise of religion.16 In a highly sensitive
constitutional area, only the gravest situation endangering paramount govemmental interests give occasion for
permissible limitation. And even in such rare cases, government may justify an inroad into religious liberty only by
showing that it is the least restrictive means of achieving the compelling state interest. A facially neutral regulation
apparently evenhandedly applied to all religious sects and denominations would be constitutionally suspect when it
imposes an undue burden on the exercise of religious freedom. "Rules are rules" is not by itself a sufficient
justification for infringing religious liberty.17
It is my submission that the government, under the guise of its regulatory powers in the censorship law (P.D. 1986 and
its corresponding implementing rules and regulations), does not have the power to interfere with the exercise of
religious expression in film or television by requiring the submission of the video tapes of petitioner's religious
program before their public viewing, absent a showing of a compelling state interest that overrides the constitutional
protection of the freedom of expression and worship. Even if government can demonstrate a compelling state interest,
it would only burden such fundamental right like the free exercise of religion by the least intrusive means
possible.18 There is no demonstration here of any sufficient state interest to justify the infringement.
In any case, petitioner's religious programs, which in their very essence and characterization are the exercise of
religious freedom, cannot possibly come under the category of the objectionable matters enumerated in Section 3(c) of
P.D. 1986 or analogous thereto. It is not likely that propagation of religion which has been spoken of as "a profession
of faith that binds and elevates man to his Creator"19 will involve pornography excessive violence or danger to
national security.
Significantly, the enumeration in Section 3(c) does not include the standard "attack against any religion" as among
those considered objectionable and subject to censorship. Respondents justify this omission by stating that any form
of expression "contrary to law" could be subject to regulation because the enumeration is in any case not exclusive,
and that the phrase "contrary to law" should, in the Solicitor General's words in behalf of respondents, be construed
"in relation to Article 201 of the Revised Penal Code which proscribes the exhibition of shows that "offend any race or
religion."20 Respondents moreover argue that the Rules and Regulations of the MTRCB issued pursuant to P.D. 1986
in any case explicitly furnish the standard left out in the enumeration when it provides:
Sec. 4. GOVERNING STANDARD. -- a) The BOARD shall judge the motion pictures and television
programs and publicity materials submitted to it for review, using as standard contemporary Filipino
cultural values to abate what are legally objectionable for being immoral, indecent, contrary to law
and good customs, injurious to the prestige of the Republic of the Philipines or its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime such as but not
limited to:
xxx xxx xxx
vii) Those which clearly constitute an attack against any race, creed, or religion as distinguished from
individual members thereof; . . .
There are several reasons why I cannot agree with respondent Board's contention that it may add the standard "attack
against any religion" among those enumerated by P.D. 1986. While the law's enumeration is concededly not exclusive,
inclusion of other standards should be made in the strict context of the words "immoral, indecent, contrary to law
and/or good customs." Specific standards following a general enumeration cannot go beyond the scope of the latter.
In the first place, the word "indecent" in censorship law has a narrow meaning, confined to obscenity regulation.12 It
cannot be conveniently employed as a catch-all term embracing all forms of expression considered noxious by the
Board. On the other hand, "contrary to law," had particular significance in the old censorship laws because those laws
explicitly included anything "offensive to other religions" among their enumerated standards. In the light of what the
Solicitor General describes as the "transitional" nature of P.D. 1986, the better view would be that the omission of
"attack against any religion" among the enumerated standards was intentional and part of the evolving process of
fashioning a system of strict classification of films and television programs as opposed to censorship. As this phrase
was ubiquitous in the old censorship laws (particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses
the manifest intention of the law-making authority to do away with the standard. This view is supported by the
Executive Branch itself, through the Opinion of then Minister of Justice Neptali Gonzales who stated, when the case
came up before his office for review, that:
 [T]he question whether the BRMPT (now MTRCB) may preview and censor the subject television
program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of P.D.
1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A,
which prescribes the standards for censorship, to wit: "immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines or its people, or with
dangerous tendency to encourage the commission of violence, or a wrong" as determined by the
Board, "applying contemporary Filipino cultural values as standard". As stated, the intention of the
Board to subject the INC's television program to "previewing and censorship is prompted by the fact
that its religious program" makes mention of beliefs and practices of other religion". On the face of
the law itself, there can conceivably be no basis for censorship of said program by the Board as much
as the alleged reason cited by the Board does not appear to be within the contemplation of the
standards of censorship set by law.22
Additionally, the phrase "contrary to law" cannot and should not be understood to refer to Article 20123 of the Revised
Penal Code, as respondents mistakenly suggest. Article 201 deals with the subject of subsequent punishment; P.D.
1986 clearly treats with an altogether different matter -- prior restraint and censorship. The two laws stand at opposite
poles in the continuum of regulation and punishment.
Thus, the censor's cut poses a peculiar danger because it altogether skirts time-honored judicial tests and standards
utilized in determining those forms of expression that fall within the area of protected speech or expression, and
because, as between prior restraints and the subsequent sanctions meted after proof of violation of specific penal
statutes, the former prevents the speech or expression from entering the marketplace of ideas.24That is exactly the
effect of the orders assailed by petitioner in the instant case. More significantly, under the specific facts and
circumstances of the case confronting us, what is sought to be kept out of the marketplace of ideas is not only ordinary
speech or expression, two constitutional values which already enjoy primacy among our civil rights, but also religious
speech or expression utilizing the medium of television.
It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard applicable to all religious sects
and denominations. I cannot agree. The "neutrality" standard has been raised in numerous free exercise cases before
the courts, the most recent having been the Flag Salute cases.25 However, a regulation neutral on its face poses free
exercise problems when it creates or has the potential of imposing undue burdens on religion. "Democratic
government acts to reinforce the generally accepted values of a given society and not merely the fundamental ones
which relate to its political structure."26 Facially neutral standards are a facet of prevailing concensus. The old flag
salute cases are testaments to the natural preference for the prevailing political and social morality over the religious
liberty of minorities. The prevalent view tends to impose its idea of what is religious and what is not over and above
the protests of the other religions, sects and denominations.27 Applying "contemporary Filipino standards" and values
(the general test in P.D. 1986) to religious thought and expression allows an "overarching" into a constitutionally
protected area and potentially would simply provide the Board with a veiled excuse for clamping down against
unorthodox religious thought and expression. Measured in terms of the historic purpose of the guarantee, the free
exercise provision in our Constitution not only insulates religion against governmental power, but when taken together
with the Establishment clause, affords protection to religious minorities by preventing the use of that power in
imposing the majority's will.
We are faced with a case of censorship and restraint which, I stated earlier, touches upon one of the most private and
sensitive of domains: the realm of religious freedom, thought and expression. In this domain, sharp differences may
arise such that the tenets of one individual may seem the "rankest error" to his neighbor.28 In the process of persuading
others about the validity of his point of view, the preacher sometimes resorts to exaggeration and vilification.
However, the determination of the question as to whether or not such vilification, exaggeration or fabrication falls
within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated
by an administrative body such as a Board of censors.29 Even if the exercise of the liberties protected by the speech,
expression and religion clauses of our Constitution are regarded as neither absolute nor unlimited, there are
appropriate laws which deal with such excesses. The least restrictive alternative would be to impose subsequent
sanctions for proven violations of laws, rather than inflict prior restraints on religious expression.
Our penal law punishes libel, or acts or speeches offensive to other religions, and awards damages whenever
warranted. In our legal scheme, courts essentially remain the arbiters of the controversies affecting the civil and
political rights of persons. It is our courts which determine whether or not certain forms of speech and expression
have exceeded the bounds of correctness, propriety or decency as to fall outside the area of protected speech. In the
meantime, the liberties protected by the speech and expression and free exercise clauses are so essential to our society
that they should be allowed to flourish unobstructed and unmolested.30
The majority opinion professes fealty to freedom of religion which it openly admits, has been accorded a preferred
status by the framers of our fundamental laws, and affirms that "(D)eeply ensconced in our fundamental
law is its hostility against all prior restraints on speech, including religious speech."31 The majority then adds
pointedly that "acts of prior restraint are hobbled by the presumption of invalidity and should be greeted with
furrowed brews. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this
heavy burden, its acts of censorship will be struck down. It failed in the case at bar."32
And yet, the majority at the same time would grant MTRCB the power to review the TV religious programs because
"with its expertise," it "can determine whether its sulphur will bring about the substantive evil feared by the
law."33The majority thus would uphold the power of the Board as an administrative body with quasi-judicial power to
preview and classify TV programs, citing with favor the 1921 decision of this Court in Sotto vs. Ruiz34 wherein it was
held that:
As has been said, the performance of the duty of determining whether a publication contains printed
matter of a libelous character rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every 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 United States Supreme Court and pertaining
to the United States Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong.
I share with Justice Mendoza's view that the majority's pronouncement would in effect place on the producer or
exhibitor the burden of going to court and of showing that his film or program is constitutionally protected. This
throws overboard the fundamental tenet that any act that restrains speech is presumed invalid and it is the burden of
the censor to overthrow this presumption. In the context of the present case, if the Board disapproves a TV religious
program or deletes a portion thereof, it is the exhibitor or producer who will go to court to prove that the Board is
wrong and the court will not interfere with the Board's decision unless it can be clearly shown that it is wrong,
following the ruling in Sotto vs. Ruiz.
The majority's ruling, I am afraid, constitutes a threat to constitutionally protected speech and expression and
supplants a judicjal standard for determining constitutionally protected speech and expression with the censor's
standard. The heavy burden on the imposition of prior restraints is shifted away from the state by imposing upon the
exhibitor the obligation of proving that the religious programs fall within the realm of protected expression. This
leaves the exhibitor with only two unwanted options: either 1) he himself deletes the portions which he anticipates the
Board might possibly object to prior to submission to that body and thereby obtains the censor's nod, or 2) submits the
Video tapes in their entirety and risks disapproval or deletion, in which case he may go to court and show that the
Video tapes contain constitutionally protected speech and expression. In the first situation, the message loses its
essence and substance. The second scenario may entail tremendous amount of money, time and effort in a prolonged
litigation. Either case constitutes grievous assault on the freedom of speech and religion.
The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioner's TV programs. In
that case, the Court held that the Acting Director of the Bureau of Posts is vested with authority to determine what
mail matter is obscene, lewd, filthy or libelous, pursuant to Section 1954 of the old Administrative Code which
provides, among others, that no lewd, lascivious, filthy, indecent or libelous character shall be deposited in, or carried
by, the mails of the Philippine Island, or be delivered to its addressee by any officer or employee of the Bureau of
Posts. Petitioner's programs which are televised in the exercise of freedom of worship cannot be placed in the category
of the printed matter proscribed in the old Administrative Code. Freedom of worship is such a precious commodity in
our hierarchy of civil liberties that it cannot be derogated peremptorily by an administrative body or officer who
determines, without judicial safeguards, whether or not to allow the exercise of such freedom.
The rights of free expression and free exercise of religion occupy a unique and special place in our constellation of
civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their
expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and
the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a
form of prior restraint is anathema to a society which places high significance to these values.
WHEREFORE, premises considered, I vote to grant the petition.
Separate Opinions
PANGANIBAN, J., concurring:
I think the basic issues in this case are:
A. What is the statutory extent and the constitutional limitation of the powers of the Movies and Television Review
and Classification Board (MTRCB)? More specifically, does the MTRCB have the power to prohibit/ censor
television shows?
B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent Board exercise its
powers correctly and properly?
The first question deals with the general legal concepts and principles underlying the functions and prerogatives of the
MTRCB while the second calls for a juridical evaluation of the specific act of the Board in classifying as "X" (or not
for public viewing) specific pre-taped or canned programs, identified as Series 115, 119, 121 and 128, for the reason
that they allegedly constituted an "attack against another religion." The first involves doctrine; the second, application.
A. EXTENT AND LIMIT OF
MTRCB'S POWERS
The statutory powers of the MTRCB are set forth in Sec. 3 of P.D.
1986.1
In implementing P.D. 1986. the MTRCB issued its own Rules and Regulations. At issue in this case is Section 4 2 of
such Rules.
On the other hand, these statutory powers and internally generated regulations are limited by the Bill of Rights. Art.
III of the 1987 Constitution, particularly the rights to free speech and religion.
Mr. Justice Mendoza connects the above constitutional rights with the present controversy by saying that "expression .
. . by means of television broadcast is included in the free speech and free press guarantee of the Constitution" and by
Mr. Justice Kapunan by writing that this "case uniquely interphases questions of religious expression and censorship
laws in the context of the constitution's guarantees of freedom of religion and of speech and expression."
Here before us therefore is a classic constitutional law case wherein the inherent power of the state to safeguard the
peace, well-being and general welfare of the people collide and clash with the constitutional rights of individuals and
religious institutions to evangelize, preach, promote, teach, and even proselytize.
Religious Freedom -- A Cherished Right
FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a preferred status by the framers of
our fundamental laws, past and present." Religious freedom is absolute when it is confined within the realm of
thought to a private, personal relationship between a man's conscience and his God, but it is subject to regulation
when religious belief is transformed into external acts that affect or afflict others. The mere invocation of religious
freedom will not stalemate the State and ipso facto render it incompetent in preserving the rights of others and in
protecting the general welfare.
MTRCB's Power to Review and to Censor is Valid
SECOND, I believe that as an agency of the State created to promote the general welfare, the MTRCB under P.D.
1986 has the basic initiatory authority and power to -
"approve or disapprove,
delete objectionable portion from
and/or prohibit
the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television
broadcast" of pre-taped or canned (as contra-distinguished from "live") video-audio/film/television programs
and publicity materials. I regret I cannot go along with Mr. Justice Mendoza's avante garde thesis that Section
3-c of P.D. 1986, from where the above-quoted words were taken, is "upon its face and as applied,
unconstitutional." I note the extensive materials, particularly from American cases, buttressing his cogent
 stand, but, after reflection, prayer and discernment. I am thoroughly convinced that the situation in our
country, particularly the totality of our cultural and religious milieu is far different from that in America.
Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials but not to religious
programs, particularly those of INC, which it claims are neither "immoral" nor "indecent". This position presents more
problems than solutions. For who will determine whether a given canned material is religious or not, and therefore
whether it can be publicly exhibited or not without its passing through the Board? I would prefer that the State, which
is constitutionally mandated to be neutral, continue to exercise the power to make such determination, rather than
leave it up to the producer, maker or exhibitor of such material, who/which, because of vested interests would, in the
normal course, be understandably biased in his/its own favor. I feel less discomfort with the idea of maintaining the
censors' quasi-judicial authority to review such film materials, subject to appeal to the proper courts by aggrieved
parties, than with the prospect and consequences of doing away with such power altogether. I agree with Mr. Justice
Vitug in finding "it more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be
contrary to decency, morality, good custom or the law until, at least, the courts are given an opportunity to pass upon
the matter . . ." A contrary ruling would most regrettably remove meaningful and necessary safeguards against a
veritable floodtide of prurient, violence-prone and values-eroding television shows and programs.
In Gonzales vs. Kalaw Katigbak4 and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,5 this Court early on
acknowledged the uniquely pervasive presence of broadcast and electronic media in the lives of everyone, and the
easy accessibility of television and radio to just about anyone, especially children. Everyone is susceptible to their
influence, even "the indifferent or unwilling who happen to be within reach of a blaring radio or television set."6 And
these audiences have less opportunity to cogitate, analyze and reject the utterances, compared to readers of printed
material.7 It is precisely because the State as parens patriae is "called upon to manifest an attitude of caring for the
welfare of the young"8 that I vote for the retention of the State's power of review and prohibition via the MTRCB.
High-minded idealism in the staunch defense of the much-vaunted freedoms cannot but be admired. Yet, no matter
how devoutly we may wish it, not all the people share the same mindset and views nor, needless to say, the same
viewpoint, i.e., the ivory tower window. Hence, we must prudently anticipate that abuses against the public weal are
likely to be committed where absolute permissiveness is the norm. Would that, with the total absence of censorship or
review, there occur a significant increase in religious, spiritual or morally uplifting prime-time programming! But
realistically and pragmatically speaking, we see mostly the prospect of more explicit sex-oriented advertising,
unadulterated violence and outright pandering to phone-sex addicts and the simply curious. The fact that even the Net
is not free of pornographic slime is no excuse to let down all reasonable barriers against broadcast media offerings of
muck, moral depravity and mayhem. And definitely, there is no good and sensible reason for the State to abdicate its
vital role as parens patriae, in the guise of copying American constitutional precedents, which I respectfully submit,
are inapplicable in our factual context and time.
MTRCB Must Use Constitutional Standard
THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must act prudently. And it
can do so ONLY if it exercizes its powers of review and prohibition according to a standard and/or a limit.
I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck down as an
unconstitutional standard. This is martial law vintage and should be replaced with the more libertarian "clear and
present danger rule" which is eloquently esplained by JJ. Kapunan, Puno and Mendoza (and which explanation I shall
not repeat here).
Having said that, may I respectfully point out however that there is an even more appropriate standard in
thePhilippine context proffered by the law itself, and that is "contemporary Philippine cultural values." This standard
under the law, should be used in determining whether a film or video program is "(a) immoral, (b) indecent, (c)
contrary to law and/or good custom, and (d) injurious to the prestige of the Republic of the Philippines or its people."
On the other hand, when the question is whether the material being reviewed "encourages the commission of violence
or of a wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger" principle should be
applied as the standard in place of the "dangerous tendency" rule.
Just a word edgewise about cultural values. Our cultural ideals and core values of galang, pagbabahala, pananagutan,
balikatan, malasakit, asal, halaga, diwa, damdamin, dangal, kapwa, pakikitungo, hiya, delikadesa, awa, tiwala,
maka-Diyos, maka-tao, maka-buhay and so forth, define us as a people, as Filipinos. We are who and what we are
because of these values and ideals. They delimit the areas of individual and social behavior and conduct deemed
acceptable or tolerable, and ultimately they determine the way we as individuals uniquely conduct our relationships
and express ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to religious thought
and expression will permit an "overarching" into a constitutionally protected area, and provides the MTRCB with a
veiled excuse for clamping down against unorthodox religious thought and expression. But such fear is highly
speculative and totally unsupported by empirical evidence. I would like to add that where a mode of religious
expression runs counter to such core values, serious questions have to be raised about the ultimate redeeming worth of
such expression. An example is in order. Not too long ago, the so-called "Children of God" blew into town, and, under
the guise of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply sit on our hands if
these "Children" were to telecast their religious programs for OUR children to watch, or conduct seminars over the
airwaves on the hows of free sex . . . Another example: satanic cults involve blood sacrifices . . . In brief, I am in
agreement with the ponencia that the practice of religion cannot be totally abandoned to the market place and
governed by the policy of laissez faire.
Validity of MTRCB's Internal Rule
FOURTH. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to prohibit the
showing of materials "which clearly constitute an attack against any race, creed or religion . . .", I agree with Mr.
Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be read together with other existing laws such as,
for instance, the provisions of the Revised Penal Code, particularly Article 201, which prohibit the exhibition of
shows that 'offend another race or religion.'" Indeed, where it can be shown that there is a clear and present danger that
a religious program could agitate or spark a religious strife of such extent and magnitude as to be injurious to the
general welfare, the Board may "X-rate" it or delete such portions as may reasonably be necessary. The debilitating
armed conflicts in Bosnia, Northern Ireland and in some Middle East countries due to exacerbated religious
antagonisms should be enough lesson for all of us. Religious wars can be more ravaging and damaging than ordinary
crimes. If it is legal and in fact praiseworthy to prevent the commission of, say, the felony of murder in the name of
public welfare why should the prevention of a crime punishable by Art. 201 of the Penal Code be any less legal and
less praiseworthy.
I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans shows which "attack" a
religion, whereas Art. 201 merely penalize; those who exhibit programs which "offend" such religion. Subject to
changing the word "attack" with the more accurate "offend". I believe Section 4 of the Rules can stand.
In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or interpretation) of the
words "dangerous tendency" with the phrase (or as meaning) "clear and present danger" in Sec. 3-c: and (2) that Sec.
4 of the Board's Rules would be likewise valid, providcd the words "constitute an attack" are changed with "offend"
B. WAS THE BANNING OF THE IGLESIA
PROGRAMS PROPER?
We now come to the immediate question: Did the respondent Board correctly apply Section 3 of P.D. 1986 in
prohibiting the public telecasting of the Iglesia program. In short, did the INC series "offend" a religion? Juridically
stated, did the respondent MTRCB use "contemporary Filipino cultural values" in determining that said series
offended another religion such as to constitute a clear and present danger of a religions strife which is injurious to
public welfare? [Note: I advisedly used both the "values" and "clear and present" standards in framing the question
because the INC program was apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a
"crime".]
Unfortunately, we cannot answer this question directly because the tape in question was never submitted to the Court
for viewing. Neither was there a detailed description of its objectionable contents in the assailed Decision of the Court
of Appeals or Regional Trial Court. Nor is there extant a detailed justification prepared by respondent Board on why it
banned the program - other than its bare conclusion that the material constituted an attack against the Catholic and
Protestant religions.
In no wise can the "remarks" in the voting slips presented before the trial court be considered sufficient justification
for banning the showing of any material.
In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize a suppression of a
species of the freedom of speech on the say-so of anyone - not even of the MRTCB. Paraphrasing People
v.Fernando,9 the disputable presumption (which is of statutory origin) that official duties have been regularly
performed must yield to the constitutionally enshrined freedoms of expression and of religion. If courts are required to
state the factual and legal bases of their conclusions and judicial dispositions, with more reason mustquasi-
judicial officers such as censors, especially when they curtail a fundamental right which is "entitled to the highest
priority and amplest protection."
FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify its conclusion
thru the use of the proper standards that the tapes in question offended another religion, I vote to GRANT the petition
insofar as it prays for the showing of said programs. However, I vote to DENY the petition insofar as allowing the
INC to show its pretaped programs without first submitting them forreview by the MTRCB.

PADILLA, J., concurring and dissenting:

I concur with the majority opinion insofar as it removes the ban against the showing of petitioner's TV Program Series
Nos. 115, 119 and 121. However, I disagree with that part of the majority opinion which upholds the power of
respondent Board to subject to prior restraint petitioner's religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there can be no prior restraints on
the exercise of free speech expression or religion unless such exercise poses a clear and present danger of a
substantive evil which the State has the right and even the duty to prevent. The ban against such prior restraints will
result, as it has resulted in the past, in occasional abuses of free speech and expression but it is immeasurably
preferable to experience such occasional abuses of speech and expression than to arm a governmental administrative
agency with the authority to censor speech and expression in accordance with legislativev standards which albeit
apparently laudable in their nature, can very well be bent or stretched by such agency to convenient latitudes as to
frustrate and eviscerate the precious freedoms of speech and expression.
Besides, any person who may feel aggrieved by the exercise of free speech, expression and religion, is afforded, under
our system, the remedy of redress in the courts of law, justice and equity.
In short, it is far better for the individual to live in a climate of free speech and free expression, devoid of prior
restraints, even at the risk of occasional excesses of such freedoms than to exist in an ambiance of censorship which is
always a step closer to autocracy and dictatorship.

MENDOZA, J., concurring:

I concur in the decision to allow the showing of certain video tapes of petitioner's program, "Ang Iglesia Ni Cristo,"
and for this purpose to reverse the contrary ruling of the Court of Appeals. I am constrained to file this separate
opinion, however, because, while the majority opinion invokes general principles of free speech and religion to which
I subscribe, it regrettably fails to apply these principles to the law (P.D. No. 1986 and its implementing rules) under
which the Board has acted.
My position will be spelled out presently but, in brief, it is this: Censorship may be allowed only in anarrow class of
cases involving pornography, excessive violence, and danger to national security. Even in these cases, only courts can
prohibit the showing of a film or the broadcast of a program. In all other cases, the only remedy against speech which
creates a clear and present danger to public interests is through subsequent punishment. Considering the potentiality
for harm which motion pictures and TV programs may have especially on the young, all materials may validly be
required to be submitted for review before they may be shown or broadcast. However, the final determination of the
character of the materials cannot be left to an administrative agency. That judicial review of administrative action is
available does not obviate the constitutional objection to censorship. For these reasons, I would hold §3(b) of P.D. No.
1986, which gives to the Board limited time for review, to be valid, while finding §3(c), under which the Board acted
in this case in censoring petitioner's materials, to be, on its face and as applied, unconstitutional.
I. "At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship or punishment. There is to be . . . no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages,
or contempt proceedings, unless there be a clear and present danger of substantive evil that Congress has a right to
prevent."1 "Because of the preferred character of the constitutional rights of freedom of speech and expression, a
weighty presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms."2
Authoritative interpretations of the free speech clause consider as invalid two types of prior restraints, namely, those
which are imposed prior to the dissemination of any matter and those imposed prior to an adequate determination that
the expression is not constitutionally protected. As the Wisconsin Supreme Court put the matter, "[A] prohibited "prior
restraint" is not limited to the suppression of a thing before it is released to the public. Rather, an invalid prior restraint
is an infringement upon the constitutional right to disseminate matters that are ordinarily protected by the first
amendment without there first being a judicial determination that the material does not qualify for first amendment
protection."3
Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions Pty. Ltd. v. Capulong,4 we
held that an injunction stopping the production of a documentary film was an invalid prior restraint on freedom of
speech and of expression. In Mutuc v. COMELEC,5 we struck down, also as an invalid prior restraint, a COMELEC
rule prohibiting the use in political campaigns of taped jingles blared through loudspeakers which were mounted on
mobile units. "[T]he constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but
not perpetuating what is uttered by him through tape or other mechanical contrivances."6
On the other hand, the fact that the material may have seen print or been taped, as in the case of the TV series in
question, cannot justify restriction on its circulation in the absence of a judicial determination that the material does
not constitute protected expression. In Sotto v. Ruiz, we denied finality to the authority of the Director of Posts to
exclude newspapers and other publications from the mails "since whether an article is or is not libelous, is
fundamentally a legal question. In order for there to be due process of law, the action of the Director of Posts must be
subject to revision by the courts in case he has abused his discretion or exceeded authority."8
II. P.D. No . 1986, §3(b) requires motion pictures, television programs and publicity materials to be submitted to the
Board for review, while §7 makes it unlawful for any person or entity to exhibit or cause to be exhibited in any
moviehouse, theater or public place or by television any motion picture, television program or publicity material
unless it has been approved by the Board. Anyone who violates the prohibition is liable to prosecution and, in case of
conviction, to punishment by imprisonment ranging from 3 months and 1 day to 1 year, plus a fine of not less than
P50,000.00 but not more than P100,000.00. In addition, the moviehouse, theater or television station violating the
provision faces a revocation of its license.9
In Burstyn v. Wilson,10 it was held that expression by means of motion pictures -- and, it may be added, by means of
television broadcasts - is included in the free speech and free press guarantee of the Constitution. This ruling is now
part our constitutional law, which has assimilated into the constitutional guarantee not only motion pictures but also
radio and television shows because of the importance of movie, radio and television both as a vehicle of
communication and as a medium of expression.11
Does §3(b) impermissibly impose a prior restraint because of its requirement that films and TV programs must be
submitted to the Board for review before they can be shown or broadcast? In my view it does not. The Burstyncase, in
declaring motion pictures to be protected under the free expression clause, was careful to add: "It does not follow that
the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places . . .
Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular
method of expression. Each method tends to present its own peculiar problems."12 With reference to television, this
Court is on record that "a less liberal approach calls for observance. This is so because unlike motion pictures where
patrons have to pay their way, television reaches every home where there is a [TV]
set. Children then will likely be among the avid viewers of programs therein shown. . . . [T]he State as parens
patriae is called upon to manifest an attitude of caring for the welfare of the young."13
While newspapers may not be required to submit manuscripts for review as a condition for their publication, except
during wartime, such a requirement is justified when applied to motion pictures or television programs (other than
newsreels and commentaries) because of unique considerations involved in their operation. "First, broadcast media
have established a uniquely pervasive presence in the livesof all citizens. Material presented over the airwaves
confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to
children. Bookstores and motion picture theaters may be prohibited from making certain material available to
children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly
tuning in and out."14 The State may thus constitutionally require the advance submission of all films and TV programs
as a means
of enabling it effectively to bar the showing of unprotected films and TV programs.15
For these reasons, I hold §3(b) to be a valid exercise of the State's power to protect legitimate public interests. The
purpose of this restraint - temporary in character -- is to allow the Board time to screen materials and to seek an
injunction from the courts against those which it believes to be harmful.
III. I reach a different conclusion, however, with respect to §3(c). This provision authorizes the Board to prohibit,
among other things, the exhibition or broadcast of motion pictures, television programs and publicity materials which,
in its opinion, are "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic
of the Philippines or its people, or [which have] a dangerous tendency to encourage the commission of violence or of
a wrong or crime," such as the following:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or
otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people in their government and/or
the duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether
living or dead; and
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to
matters which are sub judice in nature.
Under this authority, the Board can determine what can be shown or broadcast and what cannot. It is not true, as the
Board claims, that under P.D. No. 1986 its power is limited to the classification of motion pictures and TV programs.
The power to classify includes the power to censor. The Board can x-rate films and TV programs and thus ban their
public exhibition or broadcast. And once it declares that a motion picture or television program is, for example,
indecent or contrary to law, as in the case of the INC program in question, its declaration becomes the law. Unless the
producer or exhibitor is willing to go to court, shouldering not only the burden of showing that his movie or television
program is constitutionally protected but also the cost of litigation, the ban stays.16 This is censorship in its baldest
form. This is contrary to the fundamental tenet of our law that until and unless speech is found by the courts to be
unprotected its expression must be allowed.
In an effort to save this provision from constitutional attack, it is alleged that the TV program in question was
disallowed pursuant to the rules of the Board which prohibit the showing of motion pictures or TV programs
containing "malicious attack[s] against any race, creed or religion." It is contended that this rule impermissibly
broadens the prohibition in §3(c), because this ground ("malicious attack[s] against any race, creed or religion") is not
among those provided therein.
However, §3(c) gives the Board authority to stop the showing of motion pictures, television programs and publicity
materials which are "contrary to law," and Art. 201(2) (b) (3) of the Revised Penal Code makes it a crime for anyone
to exhibit "shows which offend any race or religion." It is true that Art. 201 (2) (b) (3) refers to subsequent
punishment, whereas we are dealing here with prior restraint. However, by authorizing the censorship of materials
which in the opinion of the Board are "contrary to law," §3(c) makes what is only a ground for subsequent punishment
also a ground for prior restraint on expression. It is §3(c) of P.D. No. 1986, and not only the rules implementing it,
which is unconstitutional.17
While I think the Board may be granted the power to preview materials, it is only for the purpose of enabling the
Board to decide whether to seek their prohibition by the court in the interest of safeguarding morality, good order and
public safety, considering the pervasive influence of broadcast media compared to that of the print media. But concern
with possible deleterious effects of movies and television shows cannot and should not be allowed to overshadow the
equally important concern for freedom of expression and blind us to the danger of leaving the ultimate determination
of what expression is protected and what is not to a board of censors. The protection of the youth should be in the first
place the concern of parents, schools and other institutions. I do not think that society is so morally impoverished that
we have to draw on a group of censors for ultimate moral lesson and leading.
If we have to call on the assistance of any agency at all, it must be the courts.18 There are many reasons why a system
of prior restraint (in those cases where it may validly be imposed) may only be administered by judges. First is that
the censor's bias is to censor. Second is that "only a determination in an adversary proceeding ensures the necessary
sensitivity to freedom of expression."19 As has been observed, "Central to the first amendment due process is the
notion that a judicial rather than an administrative determination of the character of the speech is necessary. . . .
[C]ourts alone are competent to decide whether speech is constitutionally protected."20 Third, the members of the
Board do not have the security of tenure and of fiscal autonomy necessary to secure their independence.
Indeed, I cannot understand why, after ruling that the valuation of property in eminent domain is essentially a judicial
function which cannot be vested in administrative agencies,21 this Court should be willing to leave the valuation of
that priceless commodity - expression, whether by means of motion picture or television - to administrative agencies
with only occasional review by the courts. The trend may be toward greater delegation of judicial authority to
administrative agencies in matters requiring technical knowledge and as a means of relieving courts of cases which
such agencies can very well attend to. 22 There is no justification, however, for such delegation in the area of our
essential freedoms, particularly freedom of expression, where "only a judicial determination in an adversary
proceeding [can] ensure the necessary sensitivity to freedom of expression."23
We have witnessed such distinct possibility in the past to need any more lesson in the future to make us realize the
danger of leaving freedom of expression and religion - the essential freedom of the mind - in the care of an
administrative agency.
To the extent therefore that P.D. No. 1986, §3(c) vests in the Board the final authority to determine whether expression
by motion picture or television is constitutionally protected, I find it unconstitutional.
IV. The majority limit themselves to a determination of the correctness of the Board's finding that the video tapes in
question contain attacks on the Catholic religion, I find it difficult to pass upon this question because the contents of
the tapes are not in the record of this case.24 The trial court ruled that the tapes contain no attack against any religion
but only a discussion of the doctrines which the Iglesia Ni Cristo believes embody "superior and self evident truth."
On the other hand, the Court of Appeals, in reversing the trial court, found that the tapes "offend by verbal abuse other
religions" and are for that reason "indecent and contrary to good customs" within the meaning of P.D. No, 1986, §3(c).
Neither court, however, had any evidence to support its conclusions, because this case was submitted by the parties
solely on the basis of memoranda. What the majority of this Court call facts (pp. 16-17) are simply the opinions of
members of the Board that the video tapes contain attacks on the Catholic religion.
There are no facts on which to base judgment on this question. Even if there are, the clear and present danger test is
inapplicable. To be sure, in Gonzales v. Kalaw Katigbak this Court said:
[W]here the movies, theatrical productions, radio scripts, television programs, and other such media
of expression are concerned -- included as they are in freedom of expression - censorship, especially
so if an entire production is banned, is allowable only under the clearest proof of a clear and present
danger of a substantive evil to public safety, public morals, public health or any other legitimate
public interest.25
The clear and present danger test has been devised for use in criminal prosecutions for violations of laws punishing
certain types of utterances.26 While the test has been applied to the regulation of the use of streets and
parks27 -- surely a form of prior restraint - its use in such context can be justified on the ground that the content of the
speech is not the issue. But when the regulation concerns not the time, place or manner of speech but its content (i.e.,
it is content-based) the clear and present danger test simply cannot be applied. This is because a determination
whether an utterance has created a clear and present danger to public interests requires a factual record.
The test itself states that the question in every case is "whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has
a right to prevent." 28 However it may have been reformulated in later cases, the test essentially requires that the
causal connection between the speech and the evil apprehended be evident.29 But how can this be shown unless the
speech is first allowed? It is not enough that the tapes have been made and only their broadcast banned. What about
the audience reaction to the tapes? Even if we know what the tapes in this case contain, we cannot determine whether
their public broadcast would create a clear and present danger to public interests. The censorship board, trying to
determine whether to issue a permit, must necessarily speculate on impact which the words will have since the context
in which they will be uttered - the audience, the occasion, and the place - is totally lacking in the record. It is then
forced to apply a lesser standard of proof in deciding whether to impose a restraint on speech.
The majority claim that there is no need for a factual record in order to find that the Board in this case exceeded its
powers in disallowing the TV series in question. They argue that "acts of prior restraint are hobbled by the
presumption of invalidity and should be greeted with furrowed brews. It is the burden of the respondent Board to
overthrow this presumption. If it fails to discharge this heavy burden, its act of censorship will be struck down. . . . In
the case at bar, respondent board did nothing to rebut the presumption." (p. 17)
That, however, is precisely the problem with the censorship law. It in effect places on the producer or exhibitor the
burden of going to court and of showing that his film or program is constitutionally protected. To paraphrase Sotto
v. Ruiz, which the majority cite as authority for sustaining the validity of §3(c), "Every intendment of the law is in
favor of the correctness of [the agency's] action."30 The Board would have this burden of justification if, as I believe it
should, is made to go to court instead and justify the banning of a film or TV program. That is why §3(c) should be
invalidated. One cannot defend the validity of the law and at the same time contend that in any court proceeding for
the review of the Board's decision the burden of justifying the ban should be on the Board.
The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the standard for judging the validity of
prior restraint on political expression is stricter than that for adjudging restraints on materials alleged to be obscene,
but not that the test of clear and present danger is applicable in determining whether or not a permit may be granted.
In Gonzales v. Kalaw Katigbak31 this Court echoed Justice Douglas's plea that "every writer, actor, or producer, no
matter what medium of expression he may use, should be freed from the censor." For indeed the full flowering of
local artistic talents and the development of the national intelligence can take place only in a climate of free
expression. A film producer, faced with the prospect of losing on his investment as a result of the banning of his movie
production, may well find himself compelled to submit to the wishes of the Board or practice self-censorship. The
expression of unpopular opinions, whether religious, political or otherwise is imperilled under such a system.
We have long ago done away with controls on the print media, it is time we did the same with the control on broadcast
media, which for so long operated under restraints,32 leaving the punishment for violations of laws to be dealt with by
subsequent prosecution.
For the foregoing reasons, I vote to declare §3(2) of P.D. No. 1986 unconstitutional and to reverse the decision of the
Court of Appeals, except in so far as it sustains the grant of power to the Board to preview materials for showing or
broadcast, consistent with my view that §3(b) is valid.

MELO, J., concurring and dissenting:

The enjoyment of the freedom of religion is always coupled with the freedom of expression. For the profession of
faith inevitably carries with it as a necessary appendage, the prerogative of propagation. The constitutional guaranty of
free exercise and enjoyment of religious profession and worship thus denotes the right to disseminate religious
information (American Bible Society vs. City of Manila 101 Phil. 386 [1957]). Any prior restriction upon a religious
expression would be a restriction on the right of religion. We recognize the role and the deep influence that religion
plays in our community. No less than the fundamental law of the land acknowledges the elevating influence of
religion by imploring the aid of almighty God to build a just and humane society. Any restriction that is to be placed
upon this right must be applied with greatest caution.
Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established religious organization has been well
with us for almost a century, with several millions of following quite a number of imposing and elegantly constructed
cathedrals and hundreds of chapels spread in many parts of the country, injecting profound influence not only in the
social and political aspect of the community but upon its moral values as well. Respect must be afforded a well-
established church, especially on matters concerning morality and decency lest no concept of morality could ever be
accepted with deference. Such preeminence in the community deserves no less than the confident expectation that it
will act in accordance with its avowed mission of promoting religious guidance and enlightenment. Its religious
programs must be accorded the presumption that the same will instill moral values that would be beneficial to its
adherents and followers, and perhaps to the community in general. The contrary must not be presumed. Its television
programs, therefore, should not be equated with ordinary movies and television shows which MTRCB is bound by the
law to monitor for possible abuse. One must recognize the power of State to protect its citizenry from the danger of
immorality and indecency motivated by the selfish desire of media entrepreneurs to accumulate more wealth, or of
bogus religious groups, for that matter, to mislead and beguile the unlettered and uninformed. But considering all
these circumstances, I see no cogent reason for the application of such power to the present case.
Freedom of religion and expression is the rule and its restriction, the exception. Any prior restriction on the exercise of
the freedom to profess religious faith and the propagation thereof will unduly diminish that religion's authority to
spread what it believes to be the sacred truth. The State can exercise no power to restrict such right until the exercise
thereof traverses the point that will endanger the order of civil society. Thus we have ruled in the case of Ebralinag
vs. The Division Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to
public safety, public morals, public health or any other legitimate public interest that the state has the
right and duty to prevent.
Correspondingly, the MTRCB has no authority to use as standard, the dangerous tendency rule, which we have long
abandoned and for which reason, the dangerous tendency standard under Subparagraph C, Section 3 of Presidential
Decree No. 1986 has no place in our statute books.
I therefore, vote to grant the petition.

VITUG, J., dissenting:

I agree with those who support the view that religious freedom occupies an exalted position in our hierarchy of rights
and that the freedom to disseminate religious information is a constitutionally-sanctioned prerogative that allows any
legitimate religious denomination a free choice of media in the propagation of its credo. Like any other right,
however, the exercise of religious belief is not without inherent and statutory limitations.
The Board disapproved the exhibition of a series of television programs of petitioner on the ground that they tend to
"offend and constitute an attack against other religions." An opinion has been expressed that the non-inclusion in
Section 3 of P.D. 1986 of an "attack against any religion," as a standard for classification, and so the deletion of the
phrase "offensive to other religions" found in the old censorship law (Executive Order No. 876), should be clear
enough to manifest a legislative intent "to do away with the standard." A reading of Section 3 of P.D. 1986 shows that
the Board is empowered to "screen, review and examine all . . . television programs" and to "approve or disprove,
delete objectionable portion from and/or prohibit the . . . television broadcast of . . . television programs . . . which, in
the judgment of the BOARD (so) applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs . . . ." I believe that the phrase "contrary to law" should
be read together with other existing laws such as, for instance, the provisions of the Revised Penal Code, particularly
Article 201, which prohibits the exhibition of shows that "offend another race or religion." I see in this provision a
good and sound standard. Recent events indicate recurrent violent incidents between and among communities with
diverse religious beliefs and dogma. The danger is past mere apprehension; it has become a virtual reality and now
prevalent in some parts of the world.
In order not to infringe constitutional principles, any restriction by the Board must, of course, be for legitimate and
valid reasons. I certainly do not think that prior censorship should altogether be rejected just because sanctions can
later be imposed. Regulating the exercise of a right is not necessarily an anathema to it; in fact, it can safeguard and
secure that right.
When I particularly ponder on the magnitude of the power of a television set, I find it more prudent to have a
deferment of an exhibition that may be perceived to be contrary to decency, morality, good customs or the law until, at
least, the courts are given an opportunity to pass upon the matter than rely merely on the availability of retribution for
actual injury sustained. A delay is not too high a price to pay for a possible damage to society that may well tum out to
be incalculable and lasting.
In this instance, I vote for the dismissal of the petition.

KAPUNAN, J., concurring and dissenting:

While I concur in the result of the majority's decision reversing that of the Court of Appeals insofar as it set aside the
action of respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119 and 121, with due respect, I
cannot agree with its opinion that respondent Board of Review for Motion pictures and Television (now MTRCB) has
the power to review petitioner's TV program "Ang Iglesia ni Cristo." The religious TV program enjoys the
Constitution's guarantee of freedom of religion,1 and of speech and
expression.,2 and cannot be subject to prior restraint by the Board by virtue of its powers and functions under Section
3 of P.D. 1986 which provides as follows:
 Sec. 3. Powers and Functions. -- The BOARD shall have the following functions, powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television programs,
including publicity materials such as advertisements, trailers and stills, whether such motion pictures
and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for
general viewing, imported or produced in the Philippines, and in the latter case, whether they be for
local viewing or for export.
c) To approve or disapprove, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of
the motion pictures, television programs and publicity materials subject of the preceding paragraph,
which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent, contrary to law and/or good customs, Injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage
the commission of violence or of a wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their
government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence and
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and,
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are subjudice in nature.
Under the aforequoted provisions, the MTRCB, while nominally a classification board, is granted the power not only
to classify, but also to approve or disapprove/prohibit exhibition of film or television broadcasts of motion pictures
and TV programs.
The freedom to disseminate religious information is a right protected by the free exercise clause of the Constitution. It
encompasses a wide range of ideas and takes many forms. In the process of enlightening the adherents or convincing
non-believers of the truth of its beliefs, a religious sect or denomination is allowed the free choice of utilizing various
media, including pulpit or podium, print, television film, and the electronic mail.
The broad latitude of freedom afforded by the free exercise clause is an historic outgrowth of our country's twin
colonial experiences: our forefathers' aversion against the Spanish colonial government's interference with religious
belief and practice and the transplantation of American Constitutional thinking into the mainstream of our political
life, which brought with it the ideas of Protestant dissent and humanistic rationalism dominant in the debates of the
American Constitutional Convention. These two poles conjoined to place the individual conscience beyond the
coercive power of government. Involving as it does the relationship of man to his Creator, respect for the inviolability
of conscience lay at the core of the free exercise clauses in our Constitutions from 1935 to 1987.3
It is, therefore, settled that religious freedom is a fundamental right entitled to the highest priority and amplest
protection among human rights. Because of its exalted position in our hierarchy of civil rights, the realm of religious
belief is generally insulated from state action, and state interference with such belief is allowed only in extreme cases.
Free exercise encompasses all shades of expression of religious belief. It includes the right to preach, proselyte and to
perform other similar functions.4 As oftentimes these aspects of the free exercise clause fall within areas affected by
government regulation, the importance of religious freedom is such that the state must make special provisions to
relieve religious liberty from restrictions imposed by generally legitimate government regulations5Commenting on
religious freedom and other freedoms of conscience, this Court held in Reyes v. Bagatsing6 that:
 [O]n the judiciary -- even more so than on the other departments -- rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course dispense with what has been felicitously termed by Justice Holmes
"as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of such rights.7
Even before film and television achieved the power and influence it has gained in the last few decades, the U.S.
Supreme Court, in the case of Burtsyn v. Wilson,8 conceded that movies were a significant medium for the
dissemination of ideas, affecting "public attitudes and behavior in a variety of ways, ranging from the direct espousal
of a political or social doctrine to the subtle shaping of thought which characterizes artistic expression."9The U.S.
Supreme Court emphasized that the significance of motion pictures as an organ of public opinion is not diluted by the
fact that films are "designed to entertain as well as to inform," 10 thus, recognizing that motion pictures fell within the
sphere of constitutionally protected speech and expression. Responding to the question of censorship in the context of
film as protected expression, the U.S. Supreme Court, in the case of Freedman v. Maryland 11 held that:
The administration of a censorship system for motion pictures presents peculiar dangers to
constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts
the initial burden on the exhibitor or distributor. Because the censor's business is to censor, there is an
inherent danger that he may be less responsive than a court part of an independent branch of
government -- to constitutionally protected interests in free expression.12
In American Bible Society v. City of Manila,13 this Court held that any restraint on the right to disseminate religious
information "can only be justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent."14 Affirming the use of this "clear and
present danger" standard in cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee
warned that "[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both grave and imminent of a serious evil to public safety,
public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent."15
Religious freedom is not of course an absolute right. However, given its exalted position in our hierarchy of civil
rights, the essence of all that has been said and written about the subject is that only those interests of the highest order
and those not otherwise served can overbalance claims to free exercise of religion.16 In a highly sensitive
constitutional area, only the gravest situation endangering paramount govemmental interests give occasion for
permissible limitation. And even in such rare cases, government may justify an inroad into religious liberty only by
showing that it is the least restrictive means of achieving the compelling state interest. A facially neutral regulation
apparently evenhandedly applied to all religious sects and denominations would be constitutionally suspect when it
imposes an undue burden on the exercise of religious freedom. "Rules are rules" is not by itself a sufficient
justification for infringing religious liberty.17
It is my submission that the government, under the guise of its regulatory powers in the censorship law (P.D. 1986 and
its corresponding implementing rules and regulations), does not have the power to interfere with the exercise of
religious expression in film or television by requiring the submission of the video tapes of petitioner's religious
program before their public viewing, absent a showing of a compelling state interest that overrides the constitutional
protection of the freedom of expression and worship. Even if government can demonstrate a compelling state interest,
it would only burden such fundamental right like the free exercise of religion by the least intrusive means
possible.18 There is no demonstration here of any sufficient state interest to justify the infringement.
In any case, petitioner's religious programs, which in their very essence and characterization are the exercise of
religious freedom, cannot possibly come under the category of the objectionable matters enumerated in Section 3(c) of
P.D. 1986 or analogous thereto. It is not likely that propagation of religion which has been spoken of as "a profession
of faith that binds and elevates man to his Creator"19 will involve pornography excessive violence or danger to
national security.
Significantly, the enumeration in Section 3(c) does not include the standard "attack against any religion" as among
those considered objectionable and subject to censorship. Respondents justify this omission by stating that any form
of expression "contrary to law" could be subject to regulation because the enumeration is in any case not exclusive,
and that the phrase "contrary to law" should, in the Solicitor General's words in behalf of respondents, be construed
"in relation to Article 201 of the Revised Penal Code which proscribes the exhibition of shows that "offend any race or
religion."20 Respondents moreover argue that the Rules and Regulations of the MTRCB issued pursuant to P.D. 1986
in any case explicitly furnish the standard left out in the enumeration when it provides:
Sec. 4. GOVERNING STANDARD. -- a) The BOARD shall judge the motion pictures and television
programs and publicity materials submitted to it for review, using as standard contemporary Filipino
cultural values to abate what are legally objectionable for being immoral, indecent, contrary to law
and good customs, injurious to the prestige of the Republic of the Philipines or its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime such as but not
limited to:
xxx xxx xxx
vii) Those which clearly constitute an attack against any race, creed, or religion as distinguished from
individual members thereof; . . .
There are several reasons why I cannot agree with respondent Board's contention that it may add the standard "attack
against any religion" among those enumerated by P.D. 1986. While the law's enumeration is concededly not exclusive,
inclusion of other standards should be made in the strict context of the words "immoral, indecent, contrary to law
and/or good customs." Specific standards following a general enumeration cannot go beyond the scope of the latter.
In the first place, the word "indecent" in censorship law has a narrow meaning, confined to obscenity regulation.12 It
cannot be conveniently employed as a catch-all term embracing all forms of expression considered noxious by the
Board. On the other hand, "contrary to law," had particular significance in the old censorship laws because those laws
explicitly included anything "offensive to other religions" among their enumerated standards. In the light of what the
Solicitor General describes as the "transitional" nature of P.D. 1986, the better view would be that the omission of
"attack against any religion" among the enumerated standards was intentional and part of the evolving process of
fashioning a system of strict classification of films and television programs as opposed to censorship. As this phrase
was ubiquitous in the old censorship laws (particularly E.O. 868 and E.O. 876), its elimination in P.D. 1986 expresses
the manifest intention of the law-making authority to do away with the standard. This view is supported by the
Executive Branch itself, through the Opinion of then Minister of Justice Neptali Gonzales who stated, when the case
came up before his office for review, that:
[T]he question whether the BRMPT (now MTRCB) may preview and censor the subject television
program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of P.D.
1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A,
which prescribes the standards for censorship, to wit: "immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines or its people, or with
dangerous tendency to encourage the commission of violence, or a wrong" as determined by the
Board, "applying contemporary Filipino cultural values as standard". As stated, the intention of the
Board to subject the INC's television program to "previewing and censorship is prompted by the fact
that its religious program" makes mention of beliefs and practices of other religion". On the face of
the law itself, there can conceivably be no basis for censorship of said program by the Board as much
as the alleged reason cited by the Board does not appear to be within the contemplation of the
standards of censorship set by law.22
Additionally, the phrase "contrary to law" cannot and should not be understood to refer to Article 20123 of the Revised
Penal Code, as respondents mistakenly suggest. Article 201 deals with the subject of subsequent punishment; P.D.
1986 clearly treats with an altogether different matter -- prior restraint and censorship. The two laws stand at opposite
poles in the continuum of regulation and punishment.
Thus, the censor's cut poses a peculiar danger because it altogether skirts time-honored judicial tests and standards
utilized in determining those forms of expression that fall within the area of protected speech or expression, and
because, as between prior restraints and the subsequent sanctions meted after proof of violation of specific penal
statutes, the former prevents the speech or expression from entering the marketplace of ideas.24That is exactly the
effect of the orders assailed by petitioner in the instant case. More significantly, under the specific facts and
circumstances of the case confronting us, what is sought to be kept out of the marketplace of ideas is not only ordinary
speech or expression, two constitutional values which already enjoy primacy among our civil rights, but also religious
speech or expression utilizing the medium of television.
It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard applicable to all religious sects
and denominations. I cannot agree. The "neutrality" standard has been raised in numerous free exercise cases before
the courts, the most recent having been the Flag Salute cases.25 However, a regulation neutral on its face poses free
exercise problems when it creates or has the potential of imposing undue burdens on religion. "Democratic
government acts to reinforce the generally accepted values of a given society and not merely the fundamental ones
which relate to its political structure."26 Facially neutral standards are a facet of prevailing concensus. The old flag
salute cases are testaments to the natural preference for the prevailing political and social morality over the religious
liberty of minorities. The prevalent view tends to impose its idea of what is religious and what is not over and above
the protests of the other religions, sects and denominations.27 Applying "contemporary Filipino standards" and values
(the general test in P.D. 1986) to religious thought and expression allows an "overarching" into a constitutionally
protected area and potentially would simply provide the Board with a veiled excuse for clamping down against
unorthodox religious thought and expression. Measured in terms of the historic purpose of the guarantee, the free
exercise provision in our Constitution not only insulates religion against governmental power, but when taken together
with the Establishment clause, affords protection to religious minorities by preventing the use of that power in
imposing the majority's will.
We are faced with a case of censorship and restraint which, I stated earlier, touches upon one of the most private and
sensitive of domains: the realm of religious freedom, thought and expression. In this domain, sharp differences may
arise such that the tenets of one individual may seem the "rankest error" to his neighbor.28 In the process of persuading
others about the validity of his point of view, the preacher sometimes resorts to exaggeration and vilification.
However, the determination of the question as to whether or not such vilification, exaggeration or fabrication falls
within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated
by an administrative body such as a Board of censors.29 Even if the exercise of the liberties protected by the speech,
expression and religion clauses of our Constitution are regarded as neither absolute nor unlimited, there are
appropriate laws which deal with such excesses. The least restrictive alternative would be to impose subsequent
sanctions for proven violations of laws, rather than inflict prior restraints on religious expression.
Our penal law punishes libel, or acts or speeches offensive to other religions, and awards damages whenever
warranted. In our legal scheme, courts essentially remain the arbiters of the controversies affecting the civil and
political rights of persons. It is our courts which determine whether or not certain forms of speech and expression
have exceeded the bounds of correctness, propriety or decency as to fall outside the area of protected speech. In the
meantime, the liberties protected by the speech and expression and free exercise clauses are so essential to our society
that they should be allowed to flourish unobstructed and unmolested.30
The majority opinion professes fealty to freedom of religion which it openly admits, has been accorded a preferred
status by the framers of our fundamental laws, and affirms that "(D)eeply ensconced in our fundamental
law is its hostility against all prior restraints on speech, including religious speech."31 The majority then adds
pointedly that "acts of prior restraint are hobbled by the presumption of invalidity and should be greeted with
furrowed brews. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this
heavy burden, its acts of censorship will be struck down. It failed in the case at bar."32
And yet, the majority at the same time would grant MTRCB the power to review the TV religious programs because
"with its expertise," it "can determine whether its sulphur will bring about the substantive evil feared by the
law."33The majority thus would uphold the power of the Board as an administrative body with quasi-judicial power to
preview and classify TV programs, citing with favor the 1921 decision of this Court in Sotto vs. Ruiz34 wherein it was
held that:
As has been said, the performance of the duty of determining whether a publication contains printed
matter of a libelous character rests with the Director of Posts and involves the exercise of his
judgment and discretion. Every 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 United States Supreme Court and pertaining
to the United States Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong.
I share with Justice Mendoza's view that the majority's pronouncement would in effect place on the producer or
exhibitor the burden of going to court and of showing that his film or program is constitutionally protected. This
throws overboard the fundamental tenet that any act that restrains speech is presumed invalid and it is the burden of
the censor to overthrow this presumption. In the context of the present case, if the Board disapproves a TV religious
program or deletes a portion thereof, it is the exhibitor or producer who will go to court to prove that the Board is
wrong and the court will not interfere with the Board's decision unless it can be clearly shown that it is wrong,
following the ruling in Sotto vs. Ruiz.
The majority's ruling, I am afraid, constitutes a threat to constitutionally protected speech and expression and
supplants a judicjal standard for determining constitutionally protected speech and expression with the censor's
standard. The heavy burden on the imposition of prior restraints is shifted away from the state by imposing upon the
exhibitor the obligation of proving that the religious programs fall within the realm of protected expression. This
leaves the exhibitor with only two unwanted options: either 1) he himself deletes the portions which he anticipates the
Board might possibly object to prior to submission to that body and thereby obtains the censor's nod, or 2) submits the
Video tapes in their entirety and risks disapproval or deletion, in which case he may go to court and show that the
Video tapes contain constitutionally protected speech and expression. In the first situation, the message loses its
essence and substance. The second scenario may entail tremendous amount of money, time and effort in a prolonged
litigation. Either case constitutes grievous assault on the freedom of speech and religion.
The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioner's TV programs. In
that case, the Court held that the Acting Director of the Bureau of Posts is vested with authority to determine what
mail matter is obscene, lewd, filthy or libelous, pursuant to Section 1954 of the old Administrative Code which
provides, among others, that no lewd, lascivious, filthy, indecent or libelous character shall be deposited in, or carried
by, the mails of the Philippine Island, or be delivered to its addressee by any officer or employee of the Bureau of
Posts. Petitioner's programs which are televised in the exercise of freedom of worship cannot be placed in the category
of the printed matter proscribed in the old Administrative Code. Freedom of worship is such a precious commodity in
our hierarchy of civil liberties that it cannot be derogated peremptorily by an administrative body or officer who
determines, without judicial safeguards, whether or not to allow the exercise of such freedom.
The rights of free expression and free exercise of religion occupy a unique and special place in our constellation of
civil rights. The primacy our society accords these freedoms determines the mode it chooses to regulate their
expression. But the idea that an ordinary statute or decree could, by its effects, nullify both the freedom of religion and
the freedom of expression puts an ominous gloss on these liberties. Censorship law as a means of regulation and as a
form of prior restraint is anathema to a society which places high significance to these values.
WHEREFORE, premises considered, I vote to grant the petition.

G.R. No. L-28196 November 9, 1967

RAMON A. GONZALES, petitioner,

vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR GENERAL, respondents.
G.R. No. L-28224 November 9, 1967
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.
No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, C.J.:
G. R. No. L-28196 is an original action for prohibition, with preliminary injunction.
Petitioner therein prays for judgment:
1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from performing any act
that will result in the holding of the plebiscite for the ratification of the constitutional amendments proposed in Joint
Resolutions Nos. 1 and 3 of the two Houses of Congress of the Philippines, approved on March 16, 1967; (b) the
Director of Printing from printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from
passing in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913; and
2) declaring said Act unconstitutional and void.
The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed the
following resolutions:
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the Constitution of the
Philippines, be amended so as to increase the membership of the House of Representatives from a maximum of 120,
as provided in the present Constitution, to a maximum of 180, to be apportioned among the several provinces as
nearly as may be according to the number of their respective inhabitants, although each province shall have, at least,
one (1) member;
2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be composed of
two (2) elective delegates from each representative district, to be "elected in the general elections to be held on the
second Tuesday of November, 1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to authorize
Senators and members of the House of Representatives to become delegates to the aforementioned constitutional
convention, without forfeiting their respective seats in Congress.
Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became Republic Act
No. 4913, providing that the amendments to the Constitution proposed in the aforementioned Resolutions No. 1 and 3
be submitted, for approval by the people, at the general elections which shall be held on November 14, 1967.
The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the Solicitor
General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the Philippine Constitution
Association — hereinafter referred to as the PHILCONSA — were allowed to argue as amici curiae. Said counsel for
the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision in this case be deferred until after a
substantially identical case brought by said organization before the Commission on Elections,1 which was expected to
decide it any time, and whose decision would, in all probability, be appealed to this Court — had been submitted
thereto for final determination, for a joint decision on the identical issues raised in both cases. In fact, on October 31,
1967, the PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review bycertiorari of the
resolution of the Commission on Elections2 dismissing the petition therein. The two (2) cases were deemed submitted
for decision on November 8, 1967, upon the filing of the answer of respondent, the memorandum of the petitioner and
the reply memorandum of respondent in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He claims to
have instituted case L-28196 as a class unit, for and in behalf of all citizens, taxpayers, and voters similarly situated.
Although respondents and the Solicitor General have filed an answer denying the truth of this allegation, upon the
ground that they have no knowledge or information to form a belief as to the truth thereof, such denial would appear
to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor of a
judicial determination of the merits of the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under the laws of
the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to uphold the rule of
law in the Philippines and to defend its Constitution against erosions or onslaughts from whatever source. Despite his
aforementioned statement in L-28196, in his answer in L-28224 the Solicitor General maintains that this Court has no
jurisdiction over the subject-matter of L-28224, upon the ground that the same is "merely political" as held
in Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino, who appeared before the Commission on Elections and
filed an opposition to the PHILCONSA petition therein, was allowed to appear before this Court and objected to said
petition upon the ground: a) that the Court has no jurisdiction either to grant the relief sought in the petition, or to pass
upon the legality of the composition of the House of Representatives; b) that the petition, if granted, would, in effect,
render in operational the legislative department; and c) that "the failure of Congress to enact a valid reapportionment
law . . . does not have the legal effect of rendering illegal the House of Representatives elected thereafter, nor of
rendering its acts null and void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court — speaking through one of the leading members of the
Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the
judicial department is the only constitutional organ which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or constituent units thereof." It is true that
in Mabanag vs. Lopez Vito,5 this Court characterizing the issue submitted thereto as a political one, declined to pass
upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the
Constitution — which was being submitted to the people for ratification — satisfied the three-fourths vote
requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs. Cuenco,8 and Macias vs. Commission on Elections.9 In
the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and
control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine
the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators
belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party
having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the
second party, of the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress
purporting to apportion the representative districts for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus
we rejected the theory, advanced in these four (4) cases, that the issues therein raised were political questions the
determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of
legislative powers to Congress.10 It is part of the inherent powers of the people — as the repository of sovereignty in a
republican state, such as ours11 — to make, and, hence, to amend their own Fundamental Law. Congress may propose
amendments to the Constitution merely because the same explicitly grants such power.12Hence, when exercising the
same, it is said that Senators and Members of the House of Representatives act, notas members of Congress, but as
component elements of a constituent assembly. When acting as such, the members of Congress derive their authority
from the Constitution, unlike the people, when performing the same function,13 for their authority does not emanate
from the Constitution — they are the very source of all powers of government, including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive
their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not
their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught,
contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution.
Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court,14 the power to
declare a treaty unconstitutional,15 despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates the
Constitution essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view
may be inconsistent with the stand taken in Mabanag vs. Lopez Vito,16 the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose amendments to this Constitution or call a
convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are submitted to the people for their
ratification.
Pursuant to this provision, amendments to the Constitution may be proposed, either by Congress, or by a convention
called by Congress for that purpose. In either case, the vote of "three-fourths of all the members of the Senate and of
the House of Representatives voting separately" is necessary. And, "such amendments shall be valid as part of" the
"Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to
the people for their ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of three-fourths of all
the members of the Senate and of the House of Representatives voting separately. This, notwithstanding, it is urged
that said resolutions are null and void because:
1. The Members of Congress, which approved the proposed amendments, as well as the resolution calling a
convention to propose amendments, are, at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose — amendments or call a convention therefore but may
not avail of both — that is to say, propose amendment and call a convention — at the same time;
3. The election, in which proposals for amendment to the Constitution shall be submitted for ratification, must be
aspecial election, not a general election, in which officers of the national and local governments — such as the
elections scheduled to be held on November 14, 1967 — will be chosen; and
4. The spirit of the Constitution demands that the election, in which proposals for amendment shall be submitted to the
people for ratification, must be held under such conditions — which, allegedly, do not exist — as to give the people a
reasonable opportunity to have a fair grasp of the nature and implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution, which provides:
The House of Representatives shall be composed of not more than one hundred and twenty Members who
shall be apportioned among the several provinces as nearly as may be according to the number of their
respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an
apportionment within three years after the return of every enumeration, and not otherwise. Until such
apportionment shall have been made, the House of Representatives shall have the same number of Members
as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present
Assembly districts. Each representative district shall comprise, as far as practicable, contiguous and compact
territory.
It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made within
three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became illegal; that
Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen, respectively; and that,
consequently, the disputed Resolutions, proposing amendments to the Constitution, as well as Republic Act No. 4913,
are null and void.
It is not true, however, that Congress has not made an apportionment within three years after the enumeration or
census made in 1960. It did actually pass a bill, which became Republic Act No. 3040,17 purporting to make said
apportionment. This Act was, however, declared unconstitutional, upon the ground that the apportionment therein
undertaken had not been made according to the number of inhabitants of the different provinces of the Philippines.18
Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a valid
apportionment within the period stated in the Constitution, Congress became an "unconstitutional Congress" and that,
in consequence thereof, the Members of its House of Representatives are de facto officers. The major premise of this
process of reasoning is that the constitutional provision on "apportionment within three years after the return of every
enumeration, and not otherwise," is mandatory. The fact that Congress is under legal obligation to make said
apportionment does not justify, however, the conclusion that failure to comply with such obligation rendered Congress
illegal or unconstitutional, or that its Members have become de facto officers.
It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid apportionment as
required in said fundamental law. The effect of this omission has been envisioned in the Constitution, pursuant to
which:
. . . Until such apportionment shall have been made, the House of Representatives shall have the same number
of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors
from the present Assembly districts. . . . .
The provision does not support the view that, upon the expiration of the period to make the apportionment, a Congress
which fails to make it is dissolved or becomes illegal. On the contrary, it implies necessarily that Congress
shall continue to function with the representative districts existing at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections held in 1935. This theory assumes that an
apportionment had to be made necessarily before the first elections to be held after the inauguration of the
Commonwealth of the Philippines, or in 1938.19 The assumption, is, however, unwarranted, for there had been no
enumeration in 1935, and nobody could foretell when it would be made. Those who drafted and adopted the
Constitution in 1935 could be certain, therefore, that the three-year period, after the earliest possible enumeration,
would expire after the elections in 1938.
What is more, considering that several provisions of the Constitution, particularly those on the legislative department,
were amended in 1940, by establishing a bicameral Congress, those who drafted and adopted said
amendment, incorporating therein the provision of the original Constitution regarding the apportionment of the
districts for representatives, must have known that the three-year period therefor would expire after the elections
scheduled to be held and actually held in 1941.
Thus, the events contemporaneous with the framing and ratification of the original Constitution in 1935 and of the
amendment thereof in 1940 strongly indicate that the provision concerning said apportionment and the effect of the
failure to make it were expected to be applied to conditions obtaining after the elections in 1935 and 1938, and even
after subsequent elections.
Then again, since the report of the Director of the Census on the last enumeration was submitted to the President on
November 30, 1960, it follows that the three-year period to make the apportionment did not expire until 1963, or after
the Presidential elections in 1961. There can be no question, therefore, that the Senate and the House of
Representatives organized or constituted on December 30, 1961, were de jure bodies, and that the Members thereof
were de jure officers. Pursuant to the theory of petitioners herein, upon expiration of said period of three years, or late
in 1963, Congress became illegal and its Members, or at least, those of the House of Representatives, became illegal
holder of their respective offices, and were de facto officers.
Petitioners do not allege that the expiration of said three-year period without a reapportionment, had the effect of
abrogating or repealing the legal provision creating Congress, or, at least, the House of Representatives, and are not
aware of any rule or principle of law that would warrant such conclusion. Neither do they allege that the term of office
of the members of said House automatically expired or that they ipso facto forfeited their seats in Congress, upon the
lapse of said period for reapportionment. In fact, neither our political law, nor our law on public officers, in particular,
supports the view that failure to discharge a mandatory duty, whatever it may be, would automatically result in the
forfeiture of an office, in the absence of a statute to this effect.
Similarly, it would seem obvious that the provision of our Election Law relative to the election of Members of
Congress in 1965 were not repealed in consequence of the failure of said body to make an apportionment within three
(3) years after the census of 1960. Inasmuch as the general elections in 1965 were presumably held in conformity with
said Election Law, and the legal provisions creating Congress — with a House of Representatives composed of
members elected by qualified voters of representative districts as they existed at the time of said elections — remained
in force, we can not see how said Members of the House of Representatives can be regarded as de facto officers owing
to the failure of their predecessors in office to make a reapportionment within the period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-President, the Justices of
the Supreme Court and the Auditor General for, inter alia, culpable violation of the Constitution,20 the enforcement of
which is, not only their mandatory duty, but also, their main function. This provision indicates that, despite the
violation of such mandatory duty, the title to their respective offices remains unimpaired, until dismissal or ouster
pursuant to a judgment of conviction rendered in accordance with Article IX of the Constitution. In short, the loss of
office or the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would not follow
that the contested resolutions and Republic Act No. 4913 are null and void. In fact, the main reasons for the existence
of the de facto doctrine is that public interest demands that acts of persons holding, under color of title, an office
created by a valid statute be, likewise, deemed valid insofar as the public — as distinguished from the officer in
question — is concerned.21 Indeed, otherwise, those dealing with officers and employees of the Government would be
entitled to demand from them satisfactory proof of their title to the positions they hold,before dealing with them, or
before recognizing their authority or obeying their commands, even if they should act within the limits of the authority
vested in their respective offices, positions or employments.22 One can imagine this great inconvenience, hardships
and evils that would result in the absence of the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be contested except
directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon the ground that he is
merely a de facto officer.24 And the reasons are obvious: (1) it would be an indirect inquiry into the title to the office;
and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is
concerned.
It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved have not been
completed and petitioners herein are not third parties. This pretense is untenable. It is inconsistent withTayko vs.
Capistrano.25 In that case, one of the parties to a suit being heard before Judge Capistrano objected to his continuing
to hear the case, for the reason that, meanwhile, he had reached the age of retirement. This Court held that the
objection could not be entertained, because the Judge was at least, a de facto Judge, whose title can not be assailed
collaterally. It should be noted that Tayko was not a third party insofar as the Judge was concerned. Tayko was one of
the parties in the aforementioned suit. Moreover, Judge Capistrano had not, as yet, finished hearing the case, much
less rendered decision therein. No rights had vested in favor of the parties, in consequence of the acts of said Judge.
Yet, Tayko's objection was overruled. Needless to say, insofar as Congress is concerned, its acts, as regards the
Resolutions herein contested and Republic Act No. 4913, are complete. Congress has nothing else to do in connection
therewith.
The Court is, also, unanimous in holding that the objection under consideration is untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose amendments to the Constitution or
call a convention for that purpose, but it can not do both, at the same time. This theory is based upon the fact that the
two (2) alternatives are connected in the Constitution by the disjunctive "or." Such basis is, however, a weak one, in
the absence of other circumstances — and none has brought to our attention — supporting the conclusion drawn by
the amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or
context of the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional provision on Congress, to
be submitted to the people for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a convention
in 1971, to consider proposals for amendment to the Constitution, in general. In other words, the subject-matter of R.
B. H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B. H. Nos. 1
and 3, will be submitted for ratification several years before those that may be proposed by the constitutional
convention called in R. B. H. No. 2. Again, although the three (3) resolutions were passed on the same date, they were
taken up and put to a vote separately, or one after the other. In other words, they were notpassed at the same time.
In any event, we do not find, either in the Constitution, or in the history thereof anything that would negate the
authority of different Congresses to approve the contested Resolutions, or of the same Congress to pass the same in,
different sessions or different days of the same congressional session. And, neither has any plausible reason been
advanced to justify the denial of authority to adopt said resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why not let the
whole thing be submitted to said convention, instead of, likewise, proposing some specific amendments, to be
submitted for ratification before said convention is held? The force of this argument must be conceded. but the same
impugns the wisdom of the action taken by Congress, not its authority to take it. One seeming purpose thereof to
permit Members of Congress to run for election as delegates to the constitutional convention and participate in the
proceedings therein, without forfeiting their seats in Congress. Whether or not this should be done is a political
question, not subject to review by the courts of justice.
On this question there is no disagreement among the members of the Court.
May Constitutional Amendments Be Submitted for Ratification in a General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and
of the House of Representatives voting separately, may propose amendments to this Constitution or call a
contention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election at which the amendments are submitted to the people for their
ratification.
There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a general,
election. The circumstance that three previous amendments to the Constitution had been submitted to the people for
ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then
obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections.
It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the same be
submitted to the people's approval independently of the election of public officials. And there is no denying the fact
that an adequate appraisal of the merits and demerits proposed amendments is likely to be overshadowed by the great
attention usually commanded by the choice of personalities involved in general elections, particularly when provincial
and municipal officials are to be chosen. But, then, these considerations are addressed to the wisdom of holding a
plebiscite simultaneously with the election of public officer. They do not deny the authority of Congress to choose
either alternative, as implied in the term "election" used, without qualification, in the abovequoted provision of the
Constitution. Such authority becomes even more patent when we consider: (1) that the term "election," normally
refers to the choice or selection of candidates to public office by popular vote; and (2) that the word used in Article V
of the Constitution, concerning the grant of suffrage to women is, not "election," but "plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be construed
as meaning a special election. Some members of the Court even feel that said term ("election") refers to a
"plebiscite," without any "election," general or special, of public officers. They opine that constitutional amendments
are, in general, if not always, of such important, if not transcendental and vital nature as to demand that the attention
of the people be focused exclusively on the subject-matter thereof, so that their votes thereon may reflect no more than
their intelligent, impartial and considered view on the merits of the proposed amendments, unimpaired, or, at least,
undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that are likely to affect
the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The ideal
conditions are, however, one thing. The question whether the Constitution forbids the submission of proposals for
amendment to the people except under such conditions, is another thing. Much as the writer and those who concur in
this opinion admire the contrary view, they find themselves unable to subscribe thereto without, in effect, reading into
the Constitution what they believe is not written thereon and can not fairly be deduced from the letter thereof, since
the spirit of the law should not be a matter of sheer speculation.
The majority view — although the votes in favor thereof are insufficient to declare Republic Act No. 4913
unconstitutional — as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by November 14, 1967,
our citizenry shall have had practically eight (8) months to be informed on the amendments in question. Then again,
Section 2 of Republic Act No. 4913 provides:
(1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least twenty days
prior to the election;"
(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every municipality, city
and provincial office building and in every polling place not later than October 14, 1967," and that said copy "shall
remain posted therein until after the election;"
(3) that "at least five copies of said amendment shall be kept in each polling place, to be made available for
examination by the qualified electors during election day;"
(4) that "when practicable, copies in the principal native languages, as may be determined by the Commission on
Elections, shall be kept in each polling place;"
(5) that "the Commission on Elections shall make available copies of said amendments in English, Spanish and,
whenever practicable, in the principal native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used on November
14, 1967.
We are not prepared to say that the foregoing measures are palpably inadequate to comply with the constitutional
requirement that proposals for amendment be "submitted to the people for their ratification," and that said measures
are manifestly insufficient, from a constitutional viewpoint, to inform the people of the amendment sought to be made.
These were substantially the same means availed of to inform the people of the subject submitted to them for
ratification, from the original Constitution down to the Parity Amendment. Thus, referring to the original Constitution,
Section 1 of Act No. 4200, provides:
 Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette, in English
and in Spanish, for three consecutive issues at least fifteen days prior to said election, and a printed copy of
said Constitution, with the Ordinance appended thereto, shall be posted in a conspicuous place in each
municipal and provincial government office building and in each polling place not later than the twenty-
second day of April, nineteen hundred and thirty-five, and shall remain posted therein continually until after
the termination of the election. At least ten copies of the Constitution with the Ordinance appended thereto, in
English and in Spanish, shall be kept at each polling place available for examination by the qualified electors
during election day. Whenever practicable, copies in the principal local dialects as may be determined by the
Secretary of the Interior shall also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading:
Said Article V of the Constitution shall be published in the Official Gazette, in English and in Spanish, for
three consecutive issues at least fifteen days prior to said election, and the said Article V shall be posted in a
conspicuous place in each municipal and provincial office building and in each polling place not later than the
twenty-second day of April, nineteen and thirty-seven, and shall remain posted therein continually until after
the termination of the plebiscite. At least ten copies of said Article V of the Constitution, in English and in
Spanish, shall be kept at each polling place available for examination by the qualified electors during the
plebiscite. Whenever practicable, copies in the principal native languages, as may be determined by the
Secretary of the Interior, shall also be kept in each polling place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following tenor:
The said amendments shall be published in English and Spanish in three consecutive issues of the Official
Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous
place in every municipal, city, and provincial government office building and in every polling place not later
than May eighteen, nineteen hundred and forty, and shall remain posted therein until after the election. At
least ten copies of said amendments shall be kept in each polling place to be made available for examination
by the qualified electors during election day. When practicable, copies in the principal native languages, as
may be determined by the Secretary of the Interior, shall also be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:
The said amendment shall be published in English and Spanish in three consecutive issues of the Official
Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous
place in every municipal, city, and provincial government office building and in every polling place not later
than February eleven, nineteen hundred and forty-seven, and shall remain posted therein until after the
election. At least, ten copies of the said amendment shall be kept in each polling place to be made available
for examination by the qualified electors during election day. When practicable, copies in the principal native
languages, as may be determined by the Commission on Elections, shall also be kept in each polling place.
The main difference between the present situation and that obtaining in connection with the former proposals does not
arise from the law enacted therefor. The difference springs from the circumstance that the major political parties had
taken sides on previous amendments to the Constitution — except, perhaps, the woman's suffrage — and,
consequently, debated thereon at some length before the plebiscite took place. Upon the other hand, said political
parties have not seemingly made an issue on the amendments now being contested and have, accordingly, refrained
from discussing the same in the current political campaign. Such debates or polemics as may have taken place — on a
rather limited scale — on the latest proposals for amendment, have been due principally to the initiative of a few civic
organizations and some militant members of our citizenry who have voiced their opinion thereon. A legislation cannot,
however, be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently. Its
constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the enactment
thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take place subsequently
to the passage or approval of the law.
Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a constitutional
angle, of the submission thereof for ratification to the people on November 14, 1967, depends — in the view of those
who concur in this opinion, and who, insofar as this phase of the case, constitute the minority — upon whether the
provisions of Republic Act No. 4913 are such as to fairly apprise the people of the gist, the main idea or the substance
of said proposals, which is — under R. B. H. No. 1 — the increase of the maximum number of seats in the House of
Representatives, from 120 to 180, and — under R. B. H. No. 3 — the authority given to the members of Congress to
run for delegates to the Constitutional Convention and, if elected thereto, to discharge the duties of such delegates,
without forfeiting their seats in Congress. We — who constitute the minority — believe that Republic Act No. 4913
satisfies such requirement and that said Act is, accordingly, constitutional.
A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts
are actually apportioned by R. B. H. No. 1 among the provinces in the Philippines. It is not improbable, however, that
they are not interested in the details of the apportionment, or that a careful reading thereof may tend in their simple
minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten
themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in
the polling places and the text of contested resolutions, as printed in full on the back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R. B. H. No. 3
upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell
such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as
the electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as legislators, even if they should
run for and assume the functions of delegates to the Convention.
We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we
feel that such factors affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1 and
3, not theauthority of Congress to approve the same.
The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress
transcending the confines set forth in the fundamental laws is not in derogation of the principle of separation of
powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions
under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the
legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in
enacting Republic Act No. 4913. Presumably, it could have done something better to enlighten the people on the
subject-matter thereof. But, then, no law is perfect. No product of human endeavor is beyond improvement.
Otherwise, no legislation would be constitutional and valid. Six (6) Members of this Court believe, however, said Act
and R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H. Nos. 1 and 3
unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby, dismiss and the writs
therein prayed for denied, without special pronouncement as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words on the question of jurisdiction.

Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make some additional observations in connection with
my concurrence. Sections 2 and 4 of Republic Act No. 4913 provide:
Sec. 2. The amendments shall be published in three consecutive issues of the Official Gazette at least twenty
days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipality,
city and provincial office building and in every polling place not later than October fourteen, nineteen
hundred and sixty-seven, and shall remain posted therein until after the election. At least five copies of the
said amendments shall be kept in each polling place to be made available for examination by the qualified
electors during election day. When practicable, copies in the principal native languages, as may be determined
by the Commission on Elections, shall be kept in each polling place. The Commission on Elections shall
make available copies of each amendments in English, Spanish and, whenever practicable, in the principal
native languages, for free distribution.
xxx xxx xxx
Sec. 4. The ballots which shall be used in the election for the approval of said amendments shall be printed in
English and Pilipino and shall be in the size and form prescribed by the Commission on Elections:Provided,
however, That at the back of said ballot there shall be printed in full Resolutions of both Houses of Congress
 Numbered One and Three, both adopted on March sixteen, nineteen hundred and sixty-seven, proposing the
amendments: Provided, further, That the questionnaire appearing on the face of the ballot shall be as follows:
Are you in favor of the proposed amendment to Section five of Article VI of our Constitution printed at the
back of this ballot?
Are you in favor of the proposed amendment to section sixteen of Article VI of our Constitution printed at the
back of this ballot?
To vote for the approval of the proposed amendments, the voter shall write the word "yes" or its equivalent in
Pilipino or in the local dialect in the blank space after each question; to vote for the rejection thereof, he shall
write the word "No" or its equivalent in Pilipino or in the local dialect.
I believe that intrinsically, that is, considered in itself and without reference to extraneous factors and circumstances,
the manner prescribed in the aforesaid provisions is sufficient for the purpose of having the proposed amendments
submitted to the people for their ratification, as enjoined in Section 1, Article XV of the Constitution. I am at a loss to
say what else should have been required by the Act to make it adhere more closely to the constitutional requirement.
Certainly it would have been out of place to provide, for instance, that government officials and employees should go
out and explain the amendments to the people, or that they should be the subject of any particular means or form of
public discussion.
The objection of some members of the Court to Republic Act No. 4913 seems to me predicated on the fact that there
are so many other issues at stake in the coming general election that the attention of the electorate, cannot be entirely
focused on the proposed amendments, such that there is a failure to properly submit them for ratification within the
intendment of the Constitution. If that is so, then the defect is not intrinsic in the law but in its implementation. The
same manner of submitting the proposed amendments to the people for ratification may, in a different setting, be
sufficient for the purpose. Yet I cannot conceive that the constitutionality or unconstitutionality of a law may be made
to depend willy-nilly on factors not inherent in its provisions. For a law to be struck down as unconstitutional it must
be so by reason of some irreconcilable conflict between it and the Constitution. Otherwise a law may be either valid or
invalid, according to circumstances not found in its provisions, such as the zeal with which they are carried out. To
such a thesis I cannot agree. The criterion would be too broad and relative, and dependent upon individual opinions
that at best are subjective. What one may regard as sufficient compliance with the requirement of submission to the
people, within the context of the same law, may not be so to another. The question is susceptible of as many views as
there are viewers; and I do not think this Court would be justified in saying that its own view on the matter is the
correct one, to the exclusion of the opinions of others.
On the other hand, I reject the argument that the ratification must necessarily be in a special election or plebiscite
called for that purpose alone. While such procedure is highly to be preferred, the Constitution speaks simply of "an
election at which the amendments are submitted to the people for their ratification," and I do not subscribe to the
restrictive interpretation that the petitioners would place on this provision, namely, that it means only a special
election.

BENGZON, J.P., J., concurring:

It is the glory of our institutions that they are founded upon law, that no one can exercise any authority over the rights
and interests of others except pursuant to and in the manner authorized by law.1 Based upon this principle, petitioners
Ramon A. Gonzales and Philippine Constitution Association (PHILCONSA) come to this Court in separate petitions.
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation thru class suit of all citizens of this
country, filed this suit for prohibition with preliminary injunction to restrain the Commission on Elections, Director of
Printing and Auditor General from implementing and/or complying with Republic Act 4913, assailing said law as
unconstitutional.
Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the constitutionality not only of
Republic Act 4913 but also of Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967.
Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for approval the amendments
to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of Both Houses
Numbered 1 and 3, adopted on March 16, 1967. Said Republic Act fixes the date and manner of the election at which
the aforesaid proposed amendments shall be voted upon by the people, and appropriates funds for said election.
Resolutions of Both Houses Nos. 1 and 3 propose two amendments to the Constitution: the first, to amend Sec. 5, Art.
VI, by increasing the maximum membership of the House of Representatives from 120 to 180, apportioning 160 of
said 180 seats and eliminating the provision that Congress shall by law make an apportionment within three years
after the return of every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and Representatives
to be delegates to a constitutional convention without forfeiting their seats.
Since both petitions relate to the proposed amendments, they are considered together herein.
Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic Act 4913 violates Sec. 1, Art. XV
of the Constitution, in submitting the proposed amendments to the Constitution, to the people for approval, at the
general election of 1967 instead of at a special election solely for that purpose; (2) Republic Act 4913 violates Sec. 1,
Art. XV of the Constitution, since it was not passed with the 3/4 vote in joint session required when Congress
proposes amendments to the Constitution, said Republic Act being a step in or part of the process of proposing
amendments to the Constitution; and (3) Republic Act 4913 violates the due process clause of the Constitution (Sec. 1,
Subsec. 1, Art. III), in not requiring that the substance of the proposed amendments be stated on the face of the ballot
or otherwise rendering clear the import of the proposed amendments, such as by stating the provisions before and after
said amendments, instead of printing at the back of the ballot only the proposed amendments.
Since observance of Constitutional provisions on the procedure for amending the Constitution is concerned, the issue
is cognizable by this Court under its powers to review an Act of Congress to determine its conformity to the
fundamental law. For though the Constitution leaves Congress free to propose whatever Constitutional amendment it
deems fit, so that the substance or content of said proposed amendment is a matter of policy and wisdom and thus a
political question, the Constitution nevertheless imposes requisites as to the manner orprocedure of proposing such
amendments, e.g., the three-fourths vote requirement. Said procedure or manner, therefore, from being left to the
discretion of Congress, as a matter of policy and wisdom, is fixed by the Constitution. And to that extent, all questions
bearing on whether Congress in proposing amendments followed the procedure required by the Constitution, is
perforce justiciable, it not being a matter of policy or wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not bear him on the point. It nowhere
requires that the ratification be thru an election solely for that purpose. It only requires that it be at "an election at
which the amendments are submitted to the people for their ratification." To join it with an election for candidates to
public office, that is, to make it concurrent with such election, does not render it any less an election at which the
proposed amendments are submitted to the people for their ratification. To prohibition being found in the plain terms
of the Constitution, none should be inferred. Had the framers of requiring Constitution thought of requiring a special
election for the purpose only of the proposed amendments, they could have said so, by qualifying the phrase with
some word such as "special" or "solely" or "exclusively". They did not.
It is not herein decided that such concurrence of election is wise, or that it would not have been better to provide for a
separate election exclusively for the ratification of the proposed amendments. The point however is that such separate
and exclusive election, even if it may be better or wiser, which again, is not for this Court to decide, is not included in
the procedure required by the Constitution to amend the same. The function of the Judiciary is "not to pass upon
questions of wisdom, justice or expediency of legislation".2 It is limited to determining whether the action taken by
the Legislative Department has violated the Constitution or not. On this score, I am of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having been passed by Congress in
joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote of three-fourths of all the members of the Senate
and of the House of Representatives voting separately, may propose amendments to this Constitution or call a
convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a
majority of the votes cast at an election to which the amendments are submitted to the people for their
ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by the term "propose amendment" is meant to
determine WHAT said amendment shall be, then Republic Act 4913 does not; Resolutions of Both Houses 1 and 3
already did that. If, on the other hand, it means, or also means, to provide for how, when, and by what means the
amendments shall be submitted to the people for approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended. Said Section has two sentences: in
the first, it requires the 3/4 voting in joint session, for Congress to "propose amendments". And then in the second
sentence, it provides that "such amendments . . . shall be submitted to the people for their ratification". This clearly
indicates that by the term "propose amendments" in the first sentence is meant to frame the substance or the content or
the WHAT-element of the amendments; for it is this and this alone that is submitted to the people for their ratification.
The details of when the election shall be held for approval or rejection of the proposed amendments, or the manner of
holding it, are not submitted for ratification to form part of the Constitution. Stated differently, the plain language of
Section 1, Art. XV, shows that the act of proposing amendments is distinct from — albeit related to — that of
submitting the amendments to the people for their ratification; and that the 3/4 voting requirement applies only to the
first step, not to the second one.
It follows that the submission of proposed amendments can be done thru an ordinary statute passed by Congress. The
Constitution does not expressly state by whom the submission shall be undertaken; the rule is that a power not lodged
elsewhere under the Constitution is deemed to reside with the legislative body, under the doctrine of residuary powers.
Congress therefore validly enacted Republic Act 4913 to fix the details of the date and manner of submitting the
proposed amendments to the people for their ratification. Since it does not "propose amendments" in the sense
referred to by Sec. 1, Art. XV of the Constitution, but merely provides for how and when the amendments, already
proposed, are going to be voted upon, the same does not need the 3/4 vote in joint session required in Sec. 1, Art. XV
of the Constitution. Furthermore, Republic Act 4913 is an appropriation measure. Sec. 6 thereof appropriates
P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of the Constitution states that "All appropriation . . . bills
shall originate exclusively in the House of Representatives". Republic Act 4913, therefore, could not have been
validly adopted in a joint session, reinforcing the view that Sec. 1, Art. XV does not apply to such a measure
providing for the holding of the election to ratify the proposed amendments, which must perforce appropriate funds
for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against substantive due process. An examination
of the provisions of the law shows no violation of the due process clause of the Constitution. The publication in the
Official Gazette at least 20 days before the election, the posting of notices in public buildings not later than October
14, 1967, to remain posted until after the elections, the placing of copies of the proposed amendments in the polling
places, aside from printing the same at the back of the ballot, provide sufficient opportunity to the voters to cast an
intelligent vote on the proposal. Due process refers only to providing fair opportunity; it does not guarantee that the
opportunity given will in fact be availed of; that is the look-out of the voter and the responsibility of the citizen. As
long as fair and reasonable opportunity to be informed is given, and it is, the due process clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and the printing of the full proposed amendments at
the back of the ballot instead of the substance thereof at the face of the ballot, do not deprive the voter of fair
opportunity to be informed. The present wording of the Constitution is not being veiled or suppressed from him; he is
conclusively presumed to know them and they are available should he want to check on what he is conclusively
presumed to know. Should the voters choose to remain ignorant of the present Constitution, the fault does not lie with
Congress. For opportunity to familiarize oneself with the Constitution as it stands has been available thru all these
years. Perhaps it would have been more convenient for the voters if the present wording of the provisions were also to
be printed on the ballot. The same however is a matter of policy. As long as the method adopted provides sufficiently
reasonable chance to intelligently vote on the amendments, and I think it does in this case, it is not constitutionally
defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed amendments. These are for the
people in their sovereign capacity to decide, not for this Court.
Two arguments were further advanced: first, that Congress cannot both call a convention and propose amendments;
second, that the present Congress is a de facto one, since no apportionment law was adopted within three years from
the last census of 1960, so that the Representatives elected in 1961 are de facto officers only. Not being de jure, they
cannot propose amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may propose amendments or call a convention for that
purpose". The term "or", however, is frequently used as having the same meaning as "and" particularly in permissive,
affirmative sentences so that the interpretation of the word "or" as "and" in the Constitution in such use will not
change its meaning (Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed
out that the resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a convention
(R.B.H. No. 2). Surely, if Congress deems it better or wise to amend the Constitution before a convention called for is
elected, it should not be fettered from doing so. For our purposes in this case, suffice it to note that the Constitution
does not prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution provides in part that "The Congress
shall by law make an apportionment within three years after the return of every enumeration, and not otherwise". It
however further states in the next sentence: "Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be
elected by the qualified electors from the present assembly districts." The failure of Congress, therefore, to pass a
valid redistricting law since the time the above provision was adopted, does not render the present districting illegal or
unconstitutional. For the Constitution itself provides for its continuance in such case, rendering legal and de
jure the status quo.
For the above reasons, I vote to uphold the constitutionality of Republic Act 4913, and fully concur with the opinion
of the Chief Justice.

FERNANDO, J., concurring:

At the outset, we are faced with a question of jurisdiction. The opinion prepared by the Chief Justice discusses the
matter with a fullness that erases doubts and misgivings and clarifies the applicable principles. A few words may
however be added.
We start from the premise that only where it can be shown that the question is to be solved by public opinion or where
the matter has been left by the Constitution to the sole discretion of any of the political branches, as was so clearly
stated by the then Justice Concepcion in Tañada v. Cuenco,1 may this Court avoid passing on the issue before it.
Whatever may be said about the present question, it is hard to speak with certitude considering Article XV, that
Congress may be entrusted with the full and uncontrolled discretion on the procedure leading to proposals for an
amendment of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice Tuason followed Coleman v.
Miller,3 in its holding that certain aspects of the amending process may be considered political. His opinion quoted
with approval the view of Justice Black, to which three other members of the United States Supreme Court agreed,
that the process itself is political in its entirety, "from submission until an amendment becomes part of the
Constitution, and is not subject to judicial guidance, control or interference at any point." In a sense that would solve
the matter neatly. The judiciary would be spared the at times arduous and in every case soul-searching process of
determining whether the procedure for amendments required by the Constitution has been followed.
At the same time, without impugning the motives of Congress, which cannot be judicially inquired into at any rate, it
is not beyond the realm of possibility that a failure to observe the requirements of Article XV would occur. In the
event that judicial intervention is sought, to rely automatically on the theory of political question to avoid passing on
such a matter of delicacy might under certain circumstances be considered, and rightly so, as nothing less than judicial
abdication or surrender.
What appears regrettable is that a major opinion of an esteemed jurist, the late Justice Tuason, would no longer be
controlling. There is comfort in the thought that the view that then prevailed was itself a product of the times. It could
very well be that considering the circumstances existing in 1947 as well as the particular amendment sought to be
incorporated in the Constitution, the parity rights ordinance, the better part of wisdom in view of the grave economic
situation then confronting the country would be to avoid the existence of any obstacle to its being submitted for
ratification. Moreover, the Republic being less than a year old, American Supreme Court opinions on constitutional
questions were-invariably accorded uncritical acceptance. Thus the approach followed by Justice Tuason is not
difficult to understand. It may be said that there is less propensity now, which is all to the good, for this Court to
accord that much deference to constitutional views coming from the quarter.
Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his memory. For as he stated in another
major opinion in Araneta v. Dinglasan,4 in ascertaining the meaning to be given the Emergency Powers Act,5 one
should not ignore what would ensue if a particular mode of construction were followed. As he so emphatically stated,
"We test a rule by its results."
The consequences of a judicial veto on the then proposed amendment on the economic survival of the country, an
erroneous appraisal it turned out later, constituted an effective argument for its submission. Why not then consider the
question political and let the people decide? That assumption could have been indulged in. It could very well be the
inarticulate major premise. For many it did bear the stamp of judicial statesmanship.
The opinion of Chief Justice Concepcion renders crystal-clear why as of this date and in the foreseeable future judicial
inquiry to assure the utmost compliance with the constitutional requirement would be a more appropriate response.

SANCHEZ, J., in separate opinion:

Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto O. Zaldivar and Mr. Justice Fred
Ruiz Castro for their invaluable contribution to the substance and form of the opinion which follows.
Directly under attack in this, a petition for prohibition, is the constitutionality of Republic Act 4913, approved on June
17, 1967. This Act seeks to implement Resolutions 1 and 3 adopted by the Senate and the House of Representatives on
March 16, 1967 with the end in view of amending vital portions of the Constitution.
Since the problem here presented has its roots in the resolutions aforesaid of both houses of Congress, it may just as
well be that we recite in brief the salient features thereof. Resolution No. 1 increases the membership of the House of
Representatives from 120 to 180 members, and immediately apportions 160 seats. A companion resolution is
Resolution No. 3 which permits Senators and Congressmen — without forfeiting their seats in Congress — to be
members of the Constitutional Convention1 to be convened, as provided in another resolution — Resolution No. 2.
Parenthetically, two of these proposed amendments to the Constitution (Resolutions I and 3) are to be submitted to the
people for their ratification next November 14, 1967. Resolution No. 2 just adverted to calls for a constitutional
convention also to propose amendments to the Constitution. The delegates thereto are to be elected on the second
Tuesday of November 1970; the convention to sit on June 1, 1971; and the amendments proposed by the convention
to be submitted to the people thereafter for their ratification.
Of importance now are the proposed amendments increasing the number of members of the House of representatives
under Resolution No. 1, and that in Resolution No. 3 which gives Senators and Congressmen the right to sit as
members of the constitutional convention to be convened on June 1, 1971. Because, these are the two amendments to
be submitted to the people in the general elections soon to be held on November 14, 1967, upon the provisions of
Section 1, Republic Act 4913, which reads:
The amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in
Resolutions of both Houses Numbered One and Three, both adopted on March sixteen, nineteen hundred and
sixty- seven, shall be submitted to the people for approval at the general election which shall be held on
November fourteen, nineteen hundred and sixty- seven, in accordance with the provisions of this Act.
Republic Act 4913 projects the basic angle of the problem thrust upon us — the manner in which the amendments
proposed by Congress just adverted to be brought to the people's attention.
First, to the controlling constitutional precept. In order that proposed amendments to the Constitution may become
effective, Section 1, Article XV thereof commands that such amendments must be "approved by a majority of the
votes cast at an election at which amendments are submitted to the people for their ratification."2 The accent is on two
words complementing each other, namely, "submitted" and "ratification."
1. We are forced to take a long hard look at the core of the problem facing us. And this, because the amendments
submitted are transcendental and encompassing. The ceiling of the number of Congressmen is sought to be elevated
from 120 to 180 members; and Senators and Congressmen may run in constitutional conventions without forfeiting
their seats. These certainly affect the people as a whole. The increase in the number of Congressmen has its
proportional increase in the people's tax burdens. They may not look at this with favor, what with the constitutional
provision (Section 5, Article VI) that Congress "shall by law make an apportionment", without the necessity of
disturbing the present constitutionally provided number of Congressmen. People in Quezon City, for instance, may
balk at the specific apportionment of the 160 seats set forth in Resolution No. 1, and ask for a Congressman of their
own, on the theory of equal representation. And then, people may question the propriety of permitting the increased
180 Congressmen from taking part in the forthcoming constitutional convention and future conventions for fear that
they may dominate its proceedings. They may entertain the belief that, if at all, increase in the number of
Congressmen should be a proper topic for deliberation in a constitutional convention which, anyway, will soon take
place. They probably would ask: Why the hurry? These ponderables require the people's close scrutiny.
2. With these as backdrop, we perforce go into the philosophy behind the constitutional directive that constitutional
amendments be submitted to the people for their ratification.
A constitutional amendment is not a temporary expedient. Unlike a statute which may suffer amendments three or
more times in the same year, it is intended to stand the test of time. It is an expression of the people's sovereign will.
And so, our approach to the problem of the mechanics of submission for ratification of amendments is thatreasoning
on the basis of the spirit of the Constitution is just as important as reasoning by a strict adherence to the phraseology
thereof. We underscore this, because it is within the realm of possibility that a Constitution maybe overhauled.
Supposing three-fourths of the Constitution is to be amended. Or, the proposal is to eliminate the all important; Bill of
Rights in its entirety. We believe it to be beyond debate that in some such situations the amendments ought to call for
a constitutional convention rather than a legislative proposal. And yet, nothing there is in the books or in the
Constitution itself. which would require such amendments to be adopted by a constitutional convention. And then,
too, the spirit of the supreme enactment, we are sure, forbids that proposals therefor be initiated by Congress and
thereafter presented to the people for their ratification.
In the context just adverted to, we take the view that the words "submitted to the people for their ratification", if
construed in the light of the nature of the Constitution — a fundamental charter that is legislation direct from the
people, an — expression of their sovereign will — is that it can only be amended by the people expressing themselves
according to the procedure ordained by the Constitution. Therefore, amendments must be fairly laid before the people
for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be
afforded ample opportunity to mull over the original provisions compare them with the proposed amendments, and try
to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly in
insidious influences. We believe, the word "submitted" can only mean that the government, within its maximum
capabilities, should strain every effort to inform very citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one
citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word
as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every instrumentality or agency within its structural framework
to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier
stated, one thing is submission and another is ratification. There must be fair submission, intelligent, consent or
rejection. If with all these safeguards the people still approve the amendment no matter how prejudicial it is to them,
then so be it. For, the people decree their own fate.
Aptly had it been said:
. . . The great men who builded the structure of our state in this respect had the mental vision of a good
Constitution voiced by Judge Cooley, who has said "A good Constitution should beyond the reach of
temporary excitement and popular caprice or passion. It is needed for stability and steadiness; it must yield to
the thought of the people; not to the whim of the people, or the thought evolved the excitement or hot blood,
but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency. . .
. Changes in government are to be feared unless the benefit is certain. As Montaign says: "All great mutations
shake and disorder a state. Good does not necessarily succeed evil; another evil may succeed and a worse."
Am. Law Rev. 1889, p. 3113
3. Tersely put, the issue before us funnels down to this proposition: If the people are not sufficiently informed of the
amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner can it
be said that in accordance with the constitutional mandate, "the amendments are submitted to the people for their
ratification?" Our answer is "No".
We examine Republic Act 4913, approved on June 17, 1967 — the statute that submits to the people the constitutional
amendments proposed by Congress in Resolutions 1 and 3. Section 2 of the Act provides the manner of propagation of
the nature of the amendments throughout the country. There are five parts in said Section 2, viz:
(1) The amendment shall be published in three consecutive issues of the Official Gazette at least twenty days
prior to the election.
(2) A printed copy thereof shall be posted in a conspicuous place in every municipality, city and provincial
office building and in every polling place not later than October fourteen, nineteen hundred and sixty-seven,
and shall remain posted therein until after the election.
 (3) At least five copies of the said amendments shall be kept in each polling place to be made available for
examination by the qualified electors during election day.
(4) When practicable, copies in the principal native languages, as may be determined by the Commission on
Elections, shall be kept in each polling place.
(5) The Commission on Elections shall make available copies of said amendments in English, Spanish and,
whenever practicable, in the principal native languages, for free distribution.
A question that comes to mind is whether the procedure for dissemination of information regarding the amendments
effectively brings the matter to the people. A dissection of the mechanics yields disturbing thoughts. First, the Official
Gazette is not widely read. It does not reach the barrios. And even if it reaches the barrios, is it available to all? And if
it is, would all under stand English? Second, it should be conceded that many citizens, especially those in the outlying
barrios, do not go to municipal, city and/or provincial office buildings, except on special occasions like paying taxes
or responding to court summonses. And if they do, will they notice the printed amendments posted on the bulletin
board? And if they do notice, such copy again is in English (sample submitted to this Court by the Solicitor General)
for, anyway, the statute does not require that it be in any other language or dialect. Third, it would not help any if at
least five copies are kept in the polling place for examination by qualified electors during election day. As petitioner
puts it, voting time is not study time. And then, who can enter the polling place, except those who are about to vote?
Fourth, copies in the principal native languages shall be kept in each polling place. But this is not, as Section 2 itself
implies, in the nature of a command because such copies shall be kept therein only "when practicable" and "as may be
determined by the Commission on Elections." Even if it be said that these are available before election, a citizen may
not intrude into the school building where the polling places are usually located without disturbing the school classes
being held there. Fifth, it is true that the Comelec is directed to make available copies of such amendments in English,
Spanish or whenever practicable, in the principal native languages, for free distribution. However, Comelec is not
required to actively distribute them to the people. This is significant as to people in the provinces, especially those in
the far-flung barrios who are completely unmindful of the discussions that go on now and then in the cities and centers
of population on the merits and demerits of the amendments. Rather, Comelec, in this case, is but a passive agency
which may hold copies available, but which copies may not be distributed at all. Finally, it is of common knowledge
that Comelec has more than its hands full in these pre-election days. They cannot possibly make extensive
distribution.
Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot submitted to this Court would
show that only the amendments are printed at the back. And this, in pursuance to Republic Act 4913 itself.
Surely enough, the voters do not have the benefit of proper notice of the proposed amendments thru dissemination by
publication in extenso. People do not have at hand the necessary data on which to base their stand on the merits and
demerits of said amendments.
We, therefore, hold that there is no proper submission of the proposed constitutional amendments within the meaning
and intendment of Section 1, Article XV of the Constitution.
4. Contemporary history is witness to the fact that during the present election campaign the focus is on the election of
candidates. The constitutional amendments are crowded out. Candidates on the homestretch, and their leaders as well
as the voters, gear their undivided efforts to the election of officials; the constitutional amendments cut no ice with
them. The truth is that even in the ballot itself, the space accorded to the casting of "yes" or "no" vote would give one
the impression that the constitutional amendments are but a bootstrap to the electoral ballot. Worse still, the fortunes
of many elective officials, on the national and local levels, are inextricably intertwined with the results of the votes on
the plebiscite. In a clash between votes for a candidate and conscience on the merits and demerits of the constitutional
amendments, we are quite certain that it is the latter that will be dented.
5. That proper submission of amendments to the people to enable them to equally ratify them properly is the meat of
the constitutional requirement, is reflected in the sequence of uniform past practices. The Constitution had been
amended thrice — in 1939, 1940 and 1947. In each case, the amendments were embodied in resolutions adopted by
the Legislature, which thereafter fixed the dates at which the proposed amendments were to be ratified or rejected.
These plebiscites have been referred to either as an "election" or "general election". At no time, however, was the vote
for the amendments of the Constitution held simultaneously with the election officials, national or local. Even with
regard to the 1947 parity amendment; the record shows that the sole issue was the 1947 parity amendment; and the
special elections simultaneously held in only three provinces, Iloilo, Pangasinan and Bukidnon, were
merely incidental thereto.
In the end we say that the people are the last ramparts that guard against indiscriminate changes in the Constitution
that is theirs. Is it too much to ask that reasonable guarantee be made that in the matter of the alterations of the law of
the land, their true voice be heard? The answer perhaps is best expressed in the following thoughts: "It must be
remembered that the Constitution is the people's enactment. No proposed change can become effective unless they will
it so through the compelling force of need of it and desire for it."4
For the reasons given, our vote is that Republic Act 4913 must be stricken down as in violation of the Constitution.
Zaldivar and Castro, JJ., concur.
Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.

REYES, J.B.L., J., concurring:

I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a mere proposal to amend the
Constitution requires (Art. XV) a three-fourths (3/4) vote of all the members of each legislative chamber, the highest
majority ever demanded by the fundamental charter, one higher even than that required in order to declare war (Sec.
24, Article VI), with all its dire consequences. If such an overwhelming majority, that was evidently exacted in order to
impress upon all and sundry the seriousness of every constitutional amendment, is asked for a proposal to amend the
Constitution, I find it impossible to believe that it was ever intended by its framers that such amendment should be
submitted and ratified by just "a majority of the votes cast at an election at which the amendments are submitted to the
people for their ratification", if the concentration of the people's attention thereon to be diverted by other extraneous
issues, such as the choice of local and national officials. The framers of the Constitution, aware of the fundamental
character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any
amendments thereto should be debated, considered and voted upon at an election wherein the people could devote
undivided attention to the subject. That this was the intention and the spirit of the provision is corroborated in the
case of all other constitutional amendments in the past, that were submitted to and approved in special elections
exclusively devoted to the issue whether the legislature's amendatory proposals should be ratified or not.
Dizon, Angeles, Zaldivar and Castro, JJ., concur.

G.R. No. L-31687 February 26, 1970

NAVARRO, petitioner,
vs.
CITY MAYOR ANTONIO J. VILLEGAS, respondent.
RESOLUTION

GENTLEMEN:
Quoted hereunder, for your information, is a resolution of this Court of even date:
"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after considering the pleadings and arguments of the
parties, issued the following Resolution:
Without prejudice to a more extended opinion and taking into account the following considerations:
That respondent Mayor has not denied nor absolutely refused the permit sought by petitioner;
That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor possesses reasonable discretion to determine or
specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and
provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order;
That respondent Mayor has expressly stated his willingness to grant permits for peaceful assemblies at Plaza Miranda
during Saturdays, Sundays and holidays when they would not cause unnecessarily great disruption of the normal
activities of the community and has further offered Sunken Gardens as an alternative to Plaza Miranda as the site of
the demonstration sought to be held this afternoon;
That experiences in connection with present assemblies and demonstrations do not warrant the Court's disbelieving
respondent Mayor's appraisal that a public rally at Plaza Miranda, as compared to one at the Sunken Gardens as he
suggested, poses a clearer and more imminent danger of public disorders, breaches of the peace, criminal acts, and
even bloodshed as an aftermath of such assemblies, and petitioner has manifested that it has no means of preventing
such disorders;
That, consequently, every time that such assemblies are announced, the community is placed in such a state of fear
and tension that offices are closed early and employees dismissed, storefronts boarded up, classes suspended, and
transportation disrupted, to the general detriment of the public:
That civil rights and liberties can exist and be preserved only in an order society;
The petitioner has failed to show a clear specific legal duty on the part of respondent Mayor to grant their application
for permit unconditionally;
The Court resolved to DENY the writ prayed for and to dismiss the petition.

Separate Opinions

VILLAMOR, J., concurring:

The right to freedom of assembly is not denied; but this right is neither unlimited nor absolute. It is not correct to say
that the Mayor has refused to grant the permit applied for; he offered an alternative which, in my opinion, is not
unreasonable. There being no arbitrary refusal to grant permit, petitioner is not entitled to the writ.
CASTRO and FERNANDO, JJ., dissenting:
Two members of the Court, Castro and Fernando, find themselves unable to concur with their brethren and would vote
to grant the petition. The right to freedom of assembly while not unlimited is entitled to be accorded the utmost
deference and respect. If respondent Mayor premised his refusal to grant the permit as sought by petitioner on a clear
showing that he was so empowered under the criteria supplied by Primicias W. Fugoso, then this petition should not
prosper as petitioner himself did invoke such authority. The grounds for his refusal are however, set forth thus in his
letter of February 24, 1970 addressed to petitioner: "In the greater interest of the general public, and in order not to
unduly disturb the life of the community, this Office, guided by a lesson gained from the events of the past few weeks,
has temporarily adopted the policy of not issuing any permit for the use of Plaza Miranda for rallies or demonstrations
during week days."1 They do not, in the opinion of the above two justices, meet the standard of the Primicias ruling. Under
the circumstances, the effect is one of prior restraint of a constitutional right. This is not allowable. An excerpt from a 1969
American Supreme Court decision is persuasive. Thus: "For in deciding whether or not to withhold a permit, the members
of the Commission were to be guided only by their own ideas of 'public welfare, peace, safety, health, decency, good order,
morals or convenience.' This ordinance as it was written, therefore, fell squarely within the ambit of the many decisions of
this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior
restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is
unconstitutional."2 This is without prejudice to a more extended opinion being written later.

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