G.R. No. 155282 January 17, 2005
Both complainants
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION
BOARD (MTRCB), petitioner,
vs.
ABS-CBN BROADCASTING CORPORATION and LOREN
LEGARDA, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under
Rule 45 of the 1997 Rules of Court, as amended, filed by
petitioner Movie and Television Review and Classification Board
(MTRCB) against ABS-CBN Broadcasting Corporation (ABS-
CBN) and former Senator Loren Legarda, respondents, assailing
the (a) Decision dated November 18, 1997,1 and (b) Order dated
August 26, 20022 of the Regional Trial Court, Branch 77, Quezon
City, in Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-
CBN aired "Prosti-tuition," an episode of the television (TV)
program "The Inside Story" produced and hosted by respondent
Legarda. It depicted female students moonlighting as prostitutes
to enable them to pay for their tuition fees. In the course of the
program, student prostitutes, pimps, customers, and some faculty
members were interviewed. The Philippine Women’s University
(PWU) was named as the school of some of the students
involved and the facade of PWU Building at Taft Avenue, Manila
conspicuously served as the background of the episode.
The showing of "The Inside Story" caused uproar in the PWU
community. Dr. Leticia P. de Guzman, Chancellor and Trustee of
the PWU, and the PWU Parents and Teachers Association filed
letter-complaints3 with petitioner MTRCB.
alleged that the episode besmirched the name of the PWU and
resulted in the harassment of some of its female students.
Acting on the letter-complaints, the MTRCB Legal Counsel
initiated a formal complaint with the MTRCB Investigating
Committee, alleging among others, that respondents (1) did not
submit "The Inside Story" to petitioner for its review
and (2) exhibited the same without its permission, thus, violating
Section 74 of Presidential Decree (P.D.) No. 19865 and Section
3,6 Chapter III and Section 7,7 Chapter IV of the MTRCB Rules
and Regulations.8
In their answer,9 respondents explained that the "The Inside
Story" is a "public affairs program, news documentary and socio-
political editorial," the airing of which is protected by the
constitutional provision on freedom of expression and of the
press. Accordingly, petitioner has no power, authority and
jurisdiction to impose any form of prior restraint upon
respondents.
On February 5, 1993, after hearing and submission of the parties’
memoranda, the MTRCB Investigating Committee rendered a
Decision, the decretal portion of which reads:
"WHEREFORE, the aforementioned premises, the respondents
are ordered to pay the sum of TWENTY THOUSAND PESOS
(₱20,000.00) for non-submission of the program, subject of this
case for review and approval of the MTRCB.
Heretofore, all subsequent programs of the ‘The Inside Story’ and
all other programs of the ABS-CBN Channel 2 of the same
category shall be submitted to the Board of Review and Approval
before showing; otherwise the Board will act accordingly."101awphi1.nét
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of
the MTRCB, issued a Decision dated March 12, 1993 affirming
the above ruling of its Investigating Committee.11 Respondents 3. MAKING PERMANENT the Injunction against
filed a motion for reconsideration but was denied in a Resolution Respondents or all persons acting in their behalf.
dated April 14, 1993.12
SO ORDERED."
Respondents then filed a special civil action for certiorari with the
Regional Trial Court (RTC), Branch 77, Quezon City. It seeks Petitioner filed a motion for reconsideration but was denied.24
to: (1) declare as unconstitutional Sections
3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Hence, this petition for review on certiorari.
Sections 3,19 7,20 and 2821 (a) of the MTRCB Rules and
Regulations;22 (2) (in the alternative) exclude the "The Inside
Petitioner MTRCB through the Solicitor General, contends inter
Story" from the coverage of the above cited provisions;
alia: first, all television programs, including "public affairs
and (3) annul and set aside the MTRCB Decision dated March
programs, news documentaries, or socio-political editorials," are
12, 1993 and Resolution dated April 14, 1993. Respondents
subject to petitioner’s power of review under Section 3 (b) of P.D.
averred that the above-cited provisions constitute "prior restraint"
No. 1986 and pursuant to this Court’s ruling in Iglesia ni Cristo vs.
on respondents’ exercise of freedom of expression and of the
Court of Appeals ;25 second, television programs are more
press, and, therefore, unconstitutional. Furthermore, the above
accessible to the public than newspapers, thus, the liberal
cited provisions do not apply to the "The Inside Story" because it
regulation of the latter cannot apply to the
falls under the category of "public affairs program, news
former; third, petitioner’s power to review television programs
documentary, or socio-political editorials" governed by standards
under Section 3(b) of P. D. No. 1986 does not amount to "prior
similar to those governing newspapers.
restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not
violate respondents’ constitutional freedom of expression and of
On November 18, 1997, the RTC rendered a Decision23 in favor the press.
of respondents, the dispositive portion of which reads:
Respondents take the opposite stance.
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby
rendered:
The issue for our resolution is whether the MTRCB has the power
or authority to review the "The Inside Story" prior to its exhibition
1. ANNULLING AND SETTING ASIDE the assailed or broadcast by television.
Decision and Resolution of MTRCB dated March 12,
1993;
The petition is impressed with merit.
2. DECLARING AND DECREEING that Sections 3 (b),
The present controversy brings into focus the provisions of
(c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections 3,
Section 3 of P. D. No. 1986, partly reproduced as follows:
7, 28 (a) of its Implementing Rules do not cover the TV
Program "The Inside Story" and other similar programs,
they being public affairs programs which can be equated "SEC. 3. Powers and Functions. – The BOARD shall have the
to newspapers; and following functions, powers and duties:
 xxxxxx
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.1a\^/phi1.net
c) To approve or disapprove, delete objectionable portions 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:
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for
the importation, exportation, production, copying, distribution,
sale, lease, exhibition, and/or television broadcast of all motion
pictures, television programs and publicity materials, to the end
and that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with
paragraph (c) hereof shall be imported, exported, produced,
copied, reproduced, distributed, sold, leased, exhibited and/or
broadcast by television;
x x x x x x."
Vis-a-vis the foregoing provisions, our task is to decide whether
or not petitioner has the power to review the television program
"The Inside Story." The task is not Herculean because it merely
resurrects this Court En Banc’s ruling in Iglesia ni Cristo vs. Court
of Appeals.26 There, the Iglesia ni Cristo sought exception from
petitioner’s review power contending that the term "television
programs" under Sec. 3 (b) does not include "religious programs"
which are protected under Section 5, Article III of the
Constitution.27 This Court, through Justice Reynato Puno,
categorically ruled that P.D. No. 1986 gives petitioner "the power
to screen, review and examine "all television
programs," emphasizing the phrase "all television programs,"
thus:
"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 x x x and/or
prohibit the x x x exhibition and/or television broadcast of x x x
television programs x x x.’ 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.’"
Settled is the rule in statutory construction that where the law
does not make any exception, courts may not except something
therefrom, unless there is compelling reason apparent in the law
to justify it.28 Ubi lex non distinguit nec distinguere debemos.
Thus, when the law says "all television programs," the word "all"
covers all television programs, whether religious, public affairs,
news documentary, etc.29 The principle assumes that the
legislative body made no qualification in the use of general word
or expression.30
It then follows that since "The Inside Story" is a television
program, it is within the jurisdiction of the MTRCB over which it
has power of review.
Here, respondents sought exemption from the coverage of the
term "television programs" on the ground that the "The Inside
Story" is a "public affairs program, news documentary and socio-
political editorial" protected under Section 4,31 Article III of the
Constitution. Albeit, respondent’s basis is not freedom of religion,
as in Iglesia ni Cristo,32 but freedom of expression and of the
press, the ruling in Iglesia ni Cristo applies squarely to the instant
issue. It is significant to note that in Iglesia ni Cristo, this Court
declared that freedom of religion has been accorded
a preferred status by the framers of our fundamental laws, past
and present, "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs x x x." Yet despite the fact that freedom of religion has
been accorded a preferred status, still this Court, did not exempt
the Iglesia ni Cristo’s religious program from petitioner’s review
power.
Respondents claim that the showing of "The Inside Story" is
protected by the constitutional provision on freedom of speech
and of the press. However, there has been no declaration at all
by the framers of the Constitution that freedom of expression and
of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious
programs from the jurisdiction and review power of petitioner
MTRCB, with more reason, there is no justification to exempt
therefrom "The Inside Story" which, according to respondents, is
protected by the constitutional provision on freedom of expression
and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCB’s power of review are those
expressly mentioned in Section 7 of P. D. No. 1986, such
as (1) television programs imprinted or exhibited by the Philippine
Government and/or its departments and agencies,
and (2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. – It shall be
unlawful for any person or entity to exhibit or cause to be
exhibited in any moviehouse, theatre, or public place or by
television within the Philippines any motion picture, television
program or publicity material, including trailers, and stills for lobby
displays in connection with motion pictures, not duly authorized
by the owner or his assignee and passed by the BOARD; or to
print or cause to be printed on any motion picture to be exhibited
in any theater or public place or by television a label or notice
showing the same to have been officially passed by the BOARD
when the same has not been previously authorized, except
motion pictures, television programs or publicity material
imprinted or exhibited by the Philippine Government and/or
its departments and agencies, and newsreels."
Still in a desperate attempt to be exempted, respondents contend
that the "The Inside Story" falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define "newsreels." Webster’s dictionary
defines newsreels as short motion picture films portraying or
dealing with current events.33 A glance at actual samples of
newsreels shows that they are mostly reenactments of events
that had already happened. Some concrete examples are those
of Dziga Vertov’s Russian Kino-Pravda newsreel series (Kino-
Pravda means literally "film-truth," a term that was later translated
literally into the French cinema verite) and Frank Capra’s Why
We Fight series.34 Apparently, newsreels are straight
presentation of events. They are depiction of "actualities."
Correspondingly, the MTRCB Rules and
Regulations35 implementing P. D. No. 1986 define newsreels as
"straight news reporting, as distinguished from news
analyses, commentaries and opinions. Talk shows on a
given issue are not considered newsreels."36 Clearly, the "The
Inside Story" cannot be considered a newsreel. It is more of a SO ORDERED.
public affairs program which is described as a variety of news
treatment; a cross between pure television news and news- Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia,
related commentaries, analysis and/or exchange of JJ., concur.
opinions.37 Certainly, such kind of program is within
petitioner’s review power.

It bears stressing that the sole issue here is whether petitioner

MTRCB has authority to review "The Inside Story." Clearly, we
are not called upon to determine whether petitioner violated
Section 4, Article III (Bill of Rights) of the Constitution providing
that no law shall be passed abridging the freedom of speech, of
oppression or the press. Petitioner did not disapprove or ban the
showing of the program. Neither did it cancel respondents’ permit.
Respondents were merely penalized for their failure to submit to
petitioner "The Inside Story" for its review and approval.
Therefore, we need not resolve whether certain provisions of P.
D. No. 1986 and the MTRCB Rules and Regulations specified by
respondents contravene the Constitution.

Consequently, we cannot sustain the RTC’s ruling that Sections 3

(c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a)
of the MTRCB Rules and Regulations are unconstitutional. It is
settled that no question involving the constitutionality or validity of
a law or governmental act may be heard and decided by the court
unless there is compliance with the legal requisites for judicial
inquiry, namely: (1) that the question must be raised by the
proper party; (2) that there must be an actual case or
controversy; (3) that the question must be raised at the earliest
possible opportunity; and, (4) that the decision on the
constitutional or legal question must be necessary to the
determination of the case itself.38

WHEREFORE, the instant petition is GRANTED. The assailed

l^vvphi1.net

RTC Decision dated November 18, 1997 and Order dated August
26, 2002 are hereby REVERSED. The Decision dated March 12,
1993 of petitioner MTRCB is AFFIRMED. Costs against
respondents.
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY
P. MEDINA, JANETTE TORAL and ERNESTO SONIDO,
JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
and THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE
NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG
MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI
"TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID,
TRACY CABRERA, RONALDO E. RENTA, CIRILO P.
SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President
Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES,
and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA
ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R.
BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF
BUDGET AND MANAGEMENT, THE DEPARTMENT OF
JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND
THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO,
VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN,
ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF
STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon Aquino
III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY
GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned
Artists of the Philippines, ELMER C. LABOG, Chairperson of
Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary
General of Karapatan, FERDINAND R. GAITE, Chairperson of
COURAGE, JOEL B. MAGLUNSOD, Vice President of
Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and
JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic
of the Philippines, PAQUITO N. OCHOA, JR., Executive
Secretary, SENATE OF THE PHILIPPINES, represented by
SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER FELICIANO
BELMONTE, JR., LEILA DE LIMA, Secretary of the
Department of Justice, LOUIS NAPOLEON C. CASAMBRE,
Executive Director of the Information and Communications
Technology Office, NONNATUS CAESAR R. ROJAS, Director
of the National Bureau of Investigation, D/GEN. NICANOR A.
BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the
Interior and Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA,
AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all
of the Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive
Secretary, HONORABLE LEILA DE LIMA in her capacity as
Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local
Government, The CHIEF of the Philippine National Police,
The DIRECTOR of the National Bureau of Investigation (all of
the Executive Department of Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES
(NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR
MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS,
JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, THE DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT
AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D.
ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY
OF INTERIOR AND LOCAL GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
BENJAMIN NOEL A. ESPINA; MARCK RONALD C. RIMORIN;
JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON
ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE
REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN
P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY,
INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY
EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO
E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as
President of the Republic of the Philippines; SENATE OF
THE PHILIPPINES, represented by HON. JUAN PONCE
ENRILE, in his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in
her capacity as Secretary of Justice; HON. LOUIS
NAPOLEON C. CASAMBRE, in his capacity as Executive
Director, Information and Communications Technology
Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity
as Director, National Bureau of Investigation; and P/DGEN.
NICANOR A. BARTOLOME, in his capacity as Chief,
Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official
capacity as President of the Republic of the Philippines;
HON. PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official
capacity as Secretary of Justice; LOUIS NAPOLEON C.
CASAMBRE, in his official capacity as Executive Director,
Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as
Director of the National Bureau of Investigation; and
DIRECTOR GENERAL NICANOR A. BARTOLOME, in his
official capacity as Chief of the Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA,
JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON
AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE
NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE
AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of
DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM,
represented by Leni Velasco, PARTIDO LAKAS NG MASA,
represented by Cesar S. Melencio, FRANCIS EUSTON R.
ACERO, MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M.
MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI
L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND
TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF,
PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of
Republic Act (R.A.) 10175, the Cybercrime Prevention Act of
2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the
cyberspace. Using his laptop or computer, a person can connect
to the internet, a system that links him to other computers and
enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds
of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including
pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and
read postings from them;
3. Advertise and promote goods or services and make
purchases and payments;
 4. Inquire and do business with institutional entities like
government agencies, banks, stock exchanges, trade
houses, credit card companies, public utilities, hospitals,
and schools; and
5. Communicate in writing or by voice with any person
through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and
billions of simultaneous and ongoing individual accesses to and
uses of the internet. The cyberspace is a boon to the need of the
current generation for greater information and facility of
communication. But all is not well with the system since it could
not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them
can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory
statements against him that people can read.
And because linking with the internet opens up a user to
communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously
accessing his bank account or credit card or defrauding him
through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to
pornography guileless children who have access to the internet.
For this reason, the government has a legitimate right to regulate
the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to
wreak or cause havoc to the computer systems and networks of
indispensable or highly useful institutions as well as to the laptop
or computer programs and memories of innocent individuals.
They accomplish this by sending electronic viruses or virtual
dynamites that destroy those computer systems, networks,
programs, and memories. The government certainly has the duty
and the right to prevent these tomfooleries from happening and
punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime
law for regulating undesirable cyberspace activities violate certain
of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace
activities, punish wrongdoings, and prevent hurtful attacks on the
system.
Pending hearing and adjudication of the issues presented in
these cases, on February 5, 2013 the Court extended the original
120-day temporary restraining order (TRO) that it earlier issued
on October 9, 2012, enjoining respondent government agencies
from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following
provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as
provisions that would enable the government to track down and
penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial
Communications;
h. Section 4(c)(4) on Libel;
 i. Section 5 on Aiding or Abetting and Attempt in the
Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised
Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of
Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to
Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and
Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles
353, 354, 361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a
computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict
scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an
American constitutional construct,1 useful in determining the
constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative classification
that impermissibly interferes with the exercise of fundamental
right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the
government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least
restrictive means to protect such interest.2 Later, the strict scrutiny
standard was used to assess the validity of laws dealing with the
regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to
equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1)
that calls for the application of the strict scrutiny standard since
no fundamental freedom, like speech, is involved in punishing
what is essentially a condemnable act – accessing the computer
system of another without right. It is a universally condemned
conduct.4
Petitioners of course fear that this section will jeopardize the work
of ethical hackers, professionals who employ tools and
techniques used by criminal hackers but would neither damage
the target systems nor steal information. Ethical hackers evaluate
the target system’s security and report back to the owners the
vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of
independent auditors who come into an organization to verify its
bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an
agreement between them as to the extent of the search, the
methods to be used, and the systems to be tested. This is
referred to as the "get out of jail free card."6 Since the ethical
hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section
4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
xxxx
(3) Data Interference. – The intentional or reckless alteration,
damaging, deletion or deterioration of computer data, electronic
document, or electronic data message, without right, including the
introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in
that, while it seeks to discourage data interference, it intrudes into
the area of protected speech and expression, creating a chilling
and deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved
by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3)
does not encroach on these freedoms at all. It simply punishes
what essentially is a form of vandalism,8 the act of willfully
destroying without right the things that belong to others, in this
case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms.
There is no freedom to destroy other people’s computer systems
and private documents.
All penal laws, like the cybercrime law, have of course an
inherent chilling effect, an in terrorem effect9 or the fear of
possible prosecution that hangs on the heads of citizens who are
minded to step beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in
addressing and penalizing socially harmful conduct.10 Here, the
chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and
creates no tendency to intimidate the free exercise of one’s
constitutional rights.
Besides, the overbreadth challenge places on petitioners the
heavy burden of proving that under no set of circumstances will
Section 4(a)(3) be valid.11 Petitioner has failed to discharge this
burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain name over the
internet in bad faith to profit, mislead, destroy the reputation, and
deprive others from registering the same, if such a domain name
is:
(i) Similar, identical, or confusingly similar to an existing
trademark registered with the appropriate government
agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a
person other than the registrant, in case of a personal
name; and
(iii) Acquired without right or with intellectual property
interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates
the equal protection clause12 in that, not being narrowly tailored, it
will cause a user using his real name to suffer the same fate as
those who use aliases or take the name of another in satire,
parody, or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist named "Julio
Gandolfo," the law would punish for cyber-squatting both the
person who registers such name because he claims it to be his
pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering
the substantial distinction between the two, the law should
recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo"
which happens to be his real name or use it as a pseudo-name
for it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring
the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the
rightful opportunity of registering the same. The challenge to the
constitutionality of Section 4(a)(6) on ground of denial of equal
protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition,
use, misuse, transfer, possession, alteration, or deletion of
identifying information belonging to another, whether natural or
juridical, without right: Provided: that if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional
rights to due process and to privacy and correspondence, and
transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and
seizures.13 But the Court acknowledged its existence as early as
1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept
known as the "Zones of Privacy." The Court explained in "In the
Matter of the Petition for Issuance of Writ of Habeas Corpus of
Sabio v. Senator Gordon"15 the relevance of these zones to the
right to privacy:
Zones of privacy are recognized and protected in our laws. Within
these zones, any form of intrusion is impermissible unless
excused by law and in accordance with customary legal process.
The meticulous regard we accord to these zones arises not only
from our conviction that the right to privacy is a "constitutional
right" and "the right most valued by civilized men," but also from
our adherence to the Universal Declaration of Human Rights
which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the
protection of the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a)
the right against unreasonable searches16 and seizures, which is
the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge
that the State has impermissibly intruded into these zones of
privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government
intrusion.18
The usual identifying information regarding a person includes his
name, his citizenship, his residence address, his contact number,
his place and date of birth, the name of his spouse if any, his
occupation, and similar data.19 The law punishes those who
acquire or use such identifying information without right, implicitly
to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of
law.
Also, the charge of invalidity of this section based on the
overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like
speech. Clearly, what this section regulates are specific actions:
the acquisition, use, misuse or deletion of personal identifying
data of another. There is no fundamental right to acquire
another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom
of the press in that journalists would be hindered from accessing
the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the
essence of identity theft that the law seeks to prohibit and punish.
Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded
as a form of theft.
The Court has defined intent to gain as an internal act which can
be established through the overt acts of the offender, and it may
be presumed from the furtive taking of useful property pertaining
to another, unless special circumstances reveal a different intent
on the part of the perpetrator.20 As such, the press, whether in
quest of news reporting or social investigation, has nothing to fear
since a special circumstance is present to negate intent to gain
which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the
offense of cybercrime punishable under this Act:
 xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer
system, for favor or consideration.
Petitioners claim that the above violates the freedom of
expression clause of the Constitution.21 They express fear that
private communications of sexual character between husband
and wife or consenting adults, which are not regarded as crimes
under the penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the term
"favor" includes "gracious kindness," "a special privilege or right
granted or conceded," or "a token of love (as a ribbon) usually
worn conspicuously."22 This meaning given to the term "favor"
embraces socially tolerated trysts. The law as written would invite
law enforcement agencies into the bedrooms of married couples
or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on
this section of the Cybercrime Prevention Act give a proper
perspective on the issue. These deliberations show a lack of
intent to penalize a "private showing x x x between and among
two private persons x x x although that may be a form of
obscenity to some."23 The understanding of those who drew up
the cybercrime law is that the element of "engaging in a business"
is necessary to constitute the illegal cybersex.24 The Act actually
seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual
organs or sexual activity—is not novel. Article 201 of the RPC
punishes "obscene publications and exhibitions and indecent
shows." The Anti-Trafficking in Persons Act of 2003 penalizes
those who "maintain or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any act,
transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange
for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the
State can regulate materials that serve no other purpose than
satisfy the market for violence, lust, or pornography.29 The Court
weighed the property rights of individuals against the public
welfare. Private property, if containing pornographic materials,
may be forfeited and destroyed. Likewise, engaging in sexual
acts privately through internet connection, perceived by some as
a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of
jurisprudence delineating the bounds of obscenity.30 The Court will
not declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in the
business of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or sexual
activity with the aid of a computer system as Congress has
intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
 xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined
and punishable by Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-
Child Pornography Act of 200931 (ACPA) to cover identical
activities in cyberspace. In theory, nothing prevents the
government from invoking the ACPA when prosecuting persons
who commit child pornography using a computer system.
Actually, ACPA’s definition of child pornography already
embraces the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Notably, no one has questioned
this ACPA provision.
Of course, the law makes the penalty higher by one degree when
the crime is committed in cyberspace. But no one can complain
since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher
penalty.32 The potential for uncontrolled proliferation of a particular
piece of child pornography when uploaded in the cyberspace is
incalculable.
Petitioners point out that the provision of ACPA that makes it
unlawful for any person to "produce, direct, manufacture or create
any form of child pornography"33 clearly relates to the prosecution
of persons who aid and abet the core offenses that ACPA seeks
to punish.34 Petitioners are wary that a person who merely
doodles on paper and imagines a sexual abuse of a 16-year-old
is not criminally liable for producing child pornography but one
who formulates the idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter, anyone who replies to the
tweet could be considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply
commenting on it will be discussed elsewhere below. For now the
Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The transmission
of commercial electronic communication with the use of computer
system which seeks to advertise, sell, or offer for sale products
and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service
and/or administrative announcements from the sender to
its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication
contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial
electronic messages (opt-out) from the same
source;
 (bb) The commercial electronic communication
does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication
does not purposely include misleading information
in any part of the message in order to induce the
recipients to read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam"
surfaced in early internet chat rooms and interactive fantasy
games. One who repeats the same sentence or comment was
said to be making a "spam." The term referred to a Monty
Python’s Flying Circus scene in which actors would keep saying
"Spam, Spam, Spam, and Spam" when reading options from a
menu.35
The Government, represented by the Solicitor General, points out
that unsolicited commercial communications or spams are a
nuisance that wastes the storage and network capacities of
internet service providers, reduces the efficiency of commerce
and technology, and interferes with the owner’s peaceful
enjoyment of his property. Transmitting spams amounts to
trespass to one’s privacy since the person sending out spams
enters the recipient’s domain without prior permission. The OSG
contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that
unsolicited electronic ads reduce the "efficiency of computers."
Secondly, people, before the arrival of the age of computers,
have already been receiving such unsolicited ads by mail. These
have never been outlawed as nuisance since people might have
interest in such ads. What matters is that the recipient has the
option of not opening or reading these mail ads. That is true with
spams. Their recipients always have the option to delete or not to
read them.
To prohibit the transmission of unsolicited ads would deny a
person the right to read his emails, even unsolicited commercial
ads addressed to him. Commercial speech is a separate category
of speech which is not accorded the same level of protection as
that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.36 The State
cannot rob him of this right without violating the constitutionally
guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code
provisions on libel as well as Section 4(c)(4) of the Cybercrime
Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or
any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory
imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown,
except in the following cases:
1. A private communication made by any person to
another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other
 official proceedings which are not of confidential nature,
or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public
officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel
committed by means of writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both, in
addition to the civil action which may be brought by the offended
party.
The libel provision of the cybercrime law, on the other hand,
merely incorporates to form part of it the provisions of the RPC on
libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which
may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in
effect, the libel provisions of the cybercrime law carry with them
the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of
"actual malice" as a basis for conviction.38 Petitioners argue that
inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on
his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel
should be stricken down as unconstitutional for otherwise good
jurisprudence requiring "actual malice" could easily be overturned
as the Court has done in Fermin v. People39 even where the
offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act
or condition concerning another; (b) publication of the charge; (c)
identity of the person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender
makes the defamatory statement with the knowledge that it is
false or with reckless disregard of whether it was false or
not.42 The reckless disregard standard used here requires a high
degree of awareness of probable falsity. There must be sufficient
evidence to permit the conclusion that the accused in fact
entertained serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not sufficient to
establish actual malice.43
The prosecution bears the burden of proving the presence of
actual malice in instances where such element is required to
establish guilt. The defense of absence of actual malice, even
when the statement turns out to be false, is available where the
offended party is a public official or a public figure, as in the cases
of Vasquez (a barangay official) and Borjal (the Executive
Director, First National Conference on Land Transportation).
Since the penal code and implicitly, the cybercrime law, mainly
target libel against private persons, the Court recognizes that
these laws imply a stricter standard of "malice" to convict the
author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good
government demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its
ruling in Fermin disregarded the higher standard of actual malice
or malice in fact when it found Cristinelli Fermin guilty of
committing libel against complainants who were public figures.
Actually, the Court found the presence of malice in fact in that
case. Thus:
It can be gleaned from her testimony that petitioner had the
motive to make defamatory imputations against complainants.
Thus, petitioner cannot, by simply making a general denial,
convince us that there was no malice on her part. Verily, not only
was there malice in law, the article being malicious in itself, but
there was also malice in fact, as there was motive to talk ill
against complainants during the electoral campaign. (Emphasis
ours)
Indeed, the Court took into account the relatively wide leeway
given to utterances against public figures in the above case,
cinema and television personalities, when it modified the penalty
of imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private individual, the
prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the
defamatory character of the assailed statement.45 For his defense,
the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the
Cybercrime Prevention Act violate the country’s obligations under
the International Covenant of Civil and Political Rights (ICCPR).
They point out that in Adonis v. Republic of the Philippines,47 the
United Nations Human Rights Committee (UNHRC) cited its
General Comment 34 to the effect that penal defamation laws
should include the defense of truth.
But General Comment 34 does not say that the truth of the
defamatory statement should constitute an all-encompassing
defense. As it happens, Article 361 recognizes truth as a defense
but under the condition that the accused has been prompted in
making the statement by good motives and for justifiable ends.
Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for
libel, the truth may be given in evidence to the court and if it
appears that the matter charged as libelous is true, and,
moreover, that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the imputation
shall have been made against Government employees with
respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation
made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as
petitioners urge, to decriminalize libel. It simply suggested that
defamation laws be crafted with care to ensure that they do not
stifle freedom of expression.48 Indeed, the ICCPR states that
although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free
speech is not absolute. It is subject to certain restrictions, as may
be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a
constitutionally protected speech and that the government has an
obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation
to Article 355 of the penal code, already punishes it. In effect,
Section 4(c)(4) above merely affirms that online defamation
constitutes "similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime
law penalizes the author of the libelous statement or article.
Cyberlibel brings with it certain intricacies, unheard of when the
penal code provisions on libel were enacted. The culture
associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling,
anything-goes writing style.50 In a sense, they are a world apart in
terms of quickness of the reader’s reaction to defamatory
statements posted in cyberspace, facilitated by one-click reply
options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other
internet users. Whether these reactions to defamatory statement
posted on the internet constitute aiding and abetting libel, acts
that Section 5 of the cybercrime law punishes, is another matter
that the Court will deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute
an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. –
Any person who willfully abets or aids in the commission
of any of the offenses enumerated in this Act shall be held
liable.
(b) Attempt in the Commission of Cybercrime. — Any
person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders
criminally liable any person who willfully abets or aids in the
commission or attempts to commit any of the offenses
enumerated as cybercrimes. It suffers from overbreadth, creating
a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects
the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that
existing laws and jurisprudence sufficiently delineate the meaning
of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage
is at times sufficient to guide law enforcement agencies in
enforcing the law.51 The legislature is not required to define every
single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and
application in existing laws. When a person aids or abets another
in destroying a forest,52 smuggling merchandise into the
country,53 or interfering in the peaceful picketing of laborers,54 his
action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or
abetting lend themselves to the tests of common sense and
human experience.
But, when it comes to certain cybercrimes, the waters are
muddier and the line of sight is somewhat blurred. The idea of
"aiding or abetting" wrongdoings online threatens the heretofore
popular and unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report,
33% of Filipinos have accessed the internet within a year,
translating to about 31 million users.55 Based on a recent survey,
the Philippines ranks 6th in the top 10 most engaged countries for
social networking.56 Social networking sites build social relations
among people who, for example, share interests, activities,
backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter.
As of late 2012, 1.2 billion people with shared interests use
Facebook to get in touch.58 Users register at this site, create a
personal profile or an open book of who they are, add other users
as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a
statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone
and not only to his friends, anyone on Facebook can react to the
posting, clicking any of several buttons of preferences on the
program’s screen such as "Like," "Comment," or "Share." "Like"
signifies that the reader likes the posting while "Comment"
enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a
posting, the original "posting" will appear on his own Facebook
profile, consequently making it visible to his down-line Facebook
Friends.
Twitter, on the other hand, is an internet social networking and
microblogging service that enables its users to send and read
short text-based messages of up to 140 characters. These are
known as "Tweets." Microblogging is the practice of posting small
pieces of digital content—which could be in the form of text,
pictures, links, short videos, or other media—on the internet.
Instead of friends, a Twitter user has "Followers," those who
subscribe to this particular user’s posts, enabling them to read the
same, and "Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like Facebook, a
Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any
Twitter user can "Retweet" a given posting. Retweeting is just
reposting or republishing another person’s tweet without the need
of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who
originates the assailed statement; b) the blog service provider like
Yahoo; c) the internet service provider like PLDT, Smart, Globe,
or Sun; d) the internet café that may have provided the computer
used for posting the blog; e) the person who makes a favorable
comment on the blog; and f) the person who posts a link to the
blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet
Service Provider).
One day, Maria posts on her internet account the statement that a
certain married public official has an illicit affair with a movie star.
Linda, one of Maria’s friends who sees this post, comments
online, "Yes, this is so true! They are so immoral." Maria’s original
post is then multiplied by her friends and the latter’s friends, and
down the line to friends of friends almost ad infinitum. Nena, who
is a stranger to both Maria and Linda, comes across this blog,
finds it interesting and so shares the link to this apparently
defamatory blog on her Twitter account. Nena’s "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s
"Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends
start Liking and making Comments on the assailed posting. A lot
of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands, and
greater postings.
The question is: are online postings such as "Liking" an openly
defamatory statement, "Commenting" on it, or "Sharing" it with
others, to be regarded as "aiding or abetting?" In libel in the
physical world, if Nestor places on the office bulletin board a
small poster that says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes on it, "I like
this!," that could not be libel since he did not author the poster. If
Arthur, passing by and noticing the poster, writes on it, "Correct!,"
would that be libel? No, for he merely expresses agreement with
the statement on the poster. He still is not its author. Besides, it is
not clear if aiding or abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a
social networking site. Would a reader and his Friends or
Followers, availing themselves of any of the "Like," "Comment,"
and "Share" reactions, be guilty of aiding or abetting libel? And, in
the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the
venue of the crime?
Except for the original author of the assailed statement, the rest
(those who pressed Like, Comment and Share) are essentially
knee-jerk sentiments of readers who may think little or
haphazardly of their response to the original posting. Will they be
liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to be filed in court,
who will make a choice as to who should go to jail for the
outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would
be a square peg in a round hole when applied to cyberspace libel.
Unless the legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such law will tend
to create a chilling effect on the millions that use this new medium
of communication in violation of their constitutionally-guaranteed
right to freedom of expression.
The United States Supreme Court faced the same issue in Reno
v. American Civil Liberties Union,61 a case involving the
constitutionality of the Communications Decency Act of 1996. The
law prohibited (1) the knowing transmission, by means of a
telecommunications device, of
"obscene or indecent" communications to any recipient under 18
years of age; and (2) the knowing use of an interactive computer
service to send to a specific person or persons under 18 years of
age or to display in a manner available to a person under 18
years of age communications that, in context, depict or describe,
in terms "patently offensive" as measured by contemporary
community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment’s guarantee of freedom of speech for being
overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996
(CDA), 47 U.S.C.S. §223, is a matter of special concern for two
reasons. First, the CDA is a content-based regulation of speech.
The vagueness of such a regulation raises special U.S. Const.
amend. I concerns because of its obvious chilling effect on free
speech. Second, the CDA is a criminal statute. In addition to the
opprobrium and stigma of a criminal conviction, the CDA
threatens violators with penalties including up to two years in
prison for each act of violation. The severity of criminal sanctions
may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images.
As a practical matter, this increased deterrent effect, coupled with
the risk of discriminatory enforcement of vague regulations, poses
greater U.S. Const. amend. I concerns than those implicated by
certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §
223, presents a great threat of censoring speech that, in fact, falls
outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that
the statute not be overly broad. The CDA’s burden on protected
speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with
just one click of the mouse. Scurrilous statements can spread and
travel fast across the globe like bad news. Moreover, cyberlibel
often goes hand in hand with cyberbullying that oppresses the
victim, his relatives, and friends, evoking from mild to disastrous
reactions. Still, a governmental purpose, which seeks to regulate
the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of
protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what
sinister predicaments await internet users will suppress otherwise
robust discussion of public issues. Democracy will be threatened
and with it, all liberties. Penal laws should provide reasonably
clear guidelines for law enforcement officials and triers of facts to
prevent arbitrary and discriminatory enforcement.63 The terms
"aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace
posts, comments, and other messages.64 Hence, Section 5 of the
cybercrime law that punishes "aiding or abetting" libel on the
cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a
facial challenge grounded on the void-for-vagueness doctrine is
acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent
in Romualdez v. Commission on Elections,65 "we must view these
statements of the Court on the inapplicability of the overbreadth
and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount ‘facial’ challenges to
penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation
of his constitutional right can raise any constitutional ground –
absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one can challenge
the constitutionality of a statute only if he asserts a violation of his
own rights. It prohibits one from assailing the constitutionality of
the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the
prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance
mount a "facial" challenge to the constitutionality of a statute even
if he claims no violation of his own rights under the assailed
statute where it involves free speech on grounds of overbreadth
or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect"
on protected speech that comes from statutes violating free
speech. A person who does not know whether his speech
constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being charged of
a crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive
medium of communication. It is inevitable that any government
threat of punishment regarding certain uses of the medium
creates a chilling effect on the constitutionally-protected freedom
of expression of the great masses that use it. In this case, the
particularly complex web of interaction on social media websites
would give law enforcers such latitude that they could arbitrarily
or selectively enforce the law.
Who is to decide when to prosecute persons who boost the
visibility of a posting on the internet by liking it? Netizens are not
given "fair notice" or warning as to what is criminal conduct and
what is lawful conduct. When a case is filed, how will the court
ascertain whether or not one netizen’s comment aided and
abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original
posting but creates an altogether new defamatory story against
Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the
penal code and the cybercrime law clearly punish authors of
defamatory publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade in the
internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social
or economic groups, races, or religions, exacerbating existing
tension in their relationships.
In regard to the crime that targets child pornography, when
"Google procures, stores, and indexes child pornography and
facilitates the completion of transactions involving the
dissemination of child pornography," does this make Google and
its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American
law on child pornography that the Cybercrimes law lacks—the
exemption of a provider or notably a plain user of interactive
computer service from civil liability for child pornography as
follows:
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider and cannot be held civilly
liable for any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user
considers to be obscene...whether or not such material is
constitutionally protected.69
When a person replies to a Tweet containing child pornography,
he effectively republishes it whether wittingly or unwittingly. Does
this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his
contact details. In this way, certain information is forwarded to
third parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of
this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to
relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its
vagueness raises apprehension on the part of internet users
because of its obvious chilling effect on the freedom of
expression, especially since the crime of aiding or abetting
ensnares all the actors in the cyberspace front in a fuzzy way.
What is more, as the petitioners point out, formal crimes such as
libel are not punishable unless consummated.71 In the absence of
legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to
Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited
Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes
under Section 5 should be permitted to apply to Section 4(a)(1)
on Illegal Access, Section 4(a)(2) on Illegal Interception, Section
4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section
4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex. None of these offenses borders on the exercise of the
freedom of expression.
The crime of willfully attempting to commit any of these offenses
is for the same reason not objectionable. A hacker may for
instance have done all that is necessary to illegally access
another party’s computer system but the security employed by
the system’s lawful owner could frustrate his effort. Another
hacker may have gained access to usernames and passwords of
others but fail to use these because the system supervisor is
alerted.72 If Section 5 that punishes any person who willfully
attempts to commit this specific offense is not upheld, the owner
of the username and password could not file a complaint against
him for attempted hacking. But this is not right. The hacker should
not be freed from liability simply because of the vigilance of a
lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and
could cover the innocent.73 While this may be true with respect to
cybercrimes that tend to sneak past the area of free expression,
any attempt to commit the other acts specified in Section 4(a)(1),
Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5),
Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal
Code, as amended, and special laws, if committed by, through
and with the use of information and communications technologies
shall be covered by the relevant provisions of this Act: Provided,
That the penalty to be imposed shall be one (1) degree higher
than that provided for by the Revised Penal Code, as amended,
and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through
the internet a qualifying circumstance. As the Solicitor General
points out, there exists a substantial distinction between crimes
committed through the use of information and communications
technology and similar crimes committed using other means. In
using the technology in question, the offender often evades
identification and is able to reach far more victims or cause
greater harm. The distinction, therefore, creates a basis for higher
penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this
Act shall be without prejudice to any liability for violation of any
provision of the Revised Penal Code, as amended, or special
laws.
The Solicitor General points out that Section 7 merely expresses
the settled doctrine that a single set of acts may be prosecuted
and penalized simultaneously under two laws, a special law and
the Revised Penal Code. When two different laws define two
crimes, prior jeopardy as to one does not bar prosecution of the
other although both offenses arise from the same fact, if each
crime involves some important act which is not an essential
element of the other.74 With the exception of the crimes of online
libel and online child pornography, the Court would rather leave
the determination of the correct application of Section 7 to actual
cases.
Online libel is different. There should be no question that if the
published material on print, said to be libelous, is again posted
online or vice versa, that identical material cannot be the subject
of two separate libels. The two offenses, one a violation of Article
353 of the Revised Penal Code and the other a violation of
Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Indeed, the
OSG itself claims that online libel under Section 4(c)(4) is not a
new crime but is one already punished under Article 353. Section
4(c)(4) merely establishes the computer system as another
means of publication.75 Charging the offender under both laws
would be a blatant violation of the proscription against double
jeopardy.76
The same is true with child pornography committed online.
Section 4(c)(2) merely expands the ACPA’s scope so as to
include identical activities in cyberspace. As previously
discussed, ACPA’s definition of child pornography in fact already
covers the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Thus, charging the offender under
both Section 4(c)(2) and ACPA would likewise be tantamount to a
violation of the constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the
punishable acts enumerated in Sections 4(a) and 4(b) of this Act
shall be punished with imprisonment of prision mayor or a fine of
at least Two hundred thousand pesos (Ph₱200,000.00) up to a
maximum amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section
4(a)(5) shall be punished with imprisonment of prision mayor or a
fine of not more than Five hundred thousand pesos
(Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical
infrastructure, the penalty of reclusion temporal or a fine of at
least Five hundred thousand pesos (Ph₱500,000.00) up to
maximum amount commensurate to the damage incurred or both,
shall be imposed.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(1) of this Act shall be punished with imprisonment
of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos
(Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(2) of this Act shall be punished with the penalties
as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be
imposed shall be one (1) degree higher than that provided for in
Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(3) shall be punished with imprisonment of arresto
mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00)
but not exceeding Two hundred fifty thousand pesos
(Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 5 shall be punished with imprisonment one (1) degree
lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (Ph₱100,000.00) but not
exceeding Five hundred thousand pesos (Ph₱500,000.00) or
both.
Section 8 provides for the penalties for the following crimes:
Sections 4(a) on Offenses Against the Confidentiality, Integrity
and Availability of Computer Data and Systems; 4(b) on
Computer-related Offenses; 4(a)(5) on Misuse of Devices; when
the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography;
4(c)(3) on Unsolicited Commercial Communications; and Section
5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.
The matter of fixing penalties for the commission of crimes is as a
rule a legislative prerogative. Here the legislature prescribed a
measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be
punished. The power to determine penalties for offenses is not
diluted or improperly wielded simply because at some prior time
the act or omission was but an element of another offense or
might just have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the
legislative department.
The courts should not encroach on this prerogative of the
lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law
enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in
real-time associated with specified communications transmitted
by means of a computer system.
Traffic data refer only to the communication’s origin, destination,
route, time, date, size, duration, or type of underlying service, but
not content, nor identities.
All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the
above-stated information.
The court warrant required under this section shall only be issued
or granted upon written application and the examination under
oath or affirmation of the applicant and the witnesses he may
produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has
been committed, or is being committed, or is about to be
committed; (2) that there are reasonable grounds to believe that
evidence that will be obtained is essential to the conviction of any
person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for
obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the
power to collect or record traffic data in real time as tending to
curtail civil liberties or provide opportunities for official abuse.
They claim that data showing where digital messages come from,
what kind they are, and where they are destined need not be
incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to
privacy and to be protected from government snooping into the
messages or information that they send to one another.
The first question is whether or not Section 12 has a proper
governmental purpose since a law may require the disclosure of
matters normally considered private but then only upon showing
that such requirement has a rational relation to the purpose of the
law,79 that there is a compelling State interest behind the law, and
that the provision itself is narrowly drawn.80 In assessing
regulations affecting privacy rights, courts should balance the
legitimate concerns of the State against constitutional
guarantees.81
Undoubtedly, the State has a compelling interest in enacting the
cybercrime law for there is a need to put order to the tremendous
activities in cyberspace for public good.82 To do this, it is within the
realm of reason that the government should be able to monitor
traffic data to enhance its ability to combat all sorts of
cybercrimes.
Chapter IV of the cybercrime law, of which the collection or
recording of traffic data is a part, aims to provide law enforcement
authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a
state business. Indeed, as Chief Justice Sereno points out, the
Budapest Convention on Cybercrimes requires signatory
countries to adopt legislative measures to empower state
authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely
what Section 12 does. It empowers law enforcement agencies in
this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the scene of
the crime after it has been committed, adequate for fighting
cybercrimes and, therefore, real-time data is superfluous for that
purpose? Evidently, it is not. Those who commit the crimes of
accessing a computer system without right,84 transmitting
viruses,85 lasciviously exhibiting sexual organs or sexual activity
for favor or consideration;86 and producing child
pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops
from day to day. In this digital age, the wicked can commit
cybercrimes from virtually anywhere: from internet cafés, from
kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered
SIM cards do not have listed addresses and can neither be
located nor identified. There are many ways the cyber criminals
can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording
and a subsequent recourse to court-issued search and seizure
warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12
are too broad and do not provide ample safeguards against
crossing legal boundaries and invading the people’s right to
privacy. The concern is understandable. Indeed, the Court
recognizes in Morfe v. Mutuc88 that certain constitutional
guarantees work together to create zones of privacy wherein
governmental powers may not intrude, and that there exists an
independent constitutional right of privacy. Such right to be left
alone has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United
States Supreme Court classified privacy into two categories:
decisional privacy and informational privacy. Decisional privacy
involves the right to independence in making certain important
decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter right—the
right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have
private information disclosed, and the right to live freely without
surveillance and intrusion.91 In determining whether or not a
matter is entitled to the right to privacy, this Court has laid down a
two-fold test. The first is a subjective test, where one claiming the
right must have an actual or legitimate expectation of privacy over
a certain matter. The second is an objective test, where his or her
expectation of privacy must be one society is prepared to accept
as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in
relation to its application to a particular person or group,
petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large
segment of the population who use all sorts of electronic devices
to communicate with one another. Consequently, the expectation
of privacy is to be measured from the general public’s point of
view. Without reasonable expectation of privacy, the right to it
would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who
courses his communication through a service provider, must of
necessity disclose to the latter, a third person, the traffic data
needed for connecting him to the recipient ICT user. For example,
an ICT user who writes a text message intended for another ICT
user must furnish his service provider with his cellphone number
and the cellphone number of his recipient, accompanying the
message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an
envelope properly addressed, sealing it closed, and sending it
through the postal service. Those who post letters have no
expectations that no one will read the information appearing
outside the envelope.
Computer data—messages of all kinds—travel across the internet
in packets and in a way that may be likened to parcels of letters
or things that are sent through the posts. When data is sent from
any one source, the content is broken up into packets and around
each of these packets is a wrapper or header. This header
contains the traffic data: information that tells computers where
the packet originated, what kind of data is in the packet (SMS,
voice call, video, internet chat messages, email, online browsing
data, etc.), where the packet is going, and how the packet fits
together with other packets.93 The difference is that traffic data
sent through the internet at times across the ocean do not
disclose the actual names and addresses (residential or office) of
the sender and the recipient, only their coded internet protocol
(IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look
into the contents of the messages and uncover the identities of
the sender and the recipient.
For example, when one calls to speak to another through his
cellphone, the service provider’s communication’s system will put
his voice message into packets and send them to the other
person’s cellphone where they are refitted together and heard.
The latter’s spoken reply is sent to the caller in the same way. To
be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call
through. He also reveals the cellphone number to the person he
calls. The other ways of communicating electronically follow the
same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United
States Supreme Court reasoned that telephone users in the ‘70s
must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled
that even if there is an expectation that phone numbers one dials
should remain private, such expectation is not one that society is
prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot
communicate or exchange data with one another over
cyberspace except through some service providers to whom they
must submit certain traffic data that are needed for a successful
cyberspace communication. The conveyance of this data takes
them out of the private sphere, making the expectation to privacy
in regard to them an expectation that society is not prepared to
recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that
when seemingly random bits of traffic data are gathered in bulk,
pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under
surveillance. With enough traffic data, analysts may be able to
determine a person’s close associations, religious views, political
affiliations, even sexual preferences. Such information is likely
beyond what the public may expect to be disclosed, and clearly
falls within matters protected by the right to privacy. But has the
procedure that Section 12 of the law provides been drawn
narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due
cause," to collect or record by technical or electronic means traffic
data in real-time. Petitioners point out that the phrase "due cause"
has no precedent in law or jurisprudence and that whether there
is due cause or not is left to the discretion of the police. Replying
to this, the Solicitor General asserts that Congress is not required
to define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through
statutory construction. But the cybercrime law, dealing with a
novel situation, fails to hint at the meaning it intends for the
phrase "due cause." The Solicitor General suggests that "due
cause" should mean "just reason or motive" and "adherence to a
lawful procedure." But the Court cannot draw this meaning since
Section 12 does not even bother to relate the collection of data to
the probable commission of a particular crime. It just says, "with
due cause," thus justifying a general gathering of data. It is akin to
the use of a general search warrant that the Constitution
prohibits.
Due cause is also not descriptive of the purpose for which data
collection will be used. Will the law enforcement agencies use the
traffic data to identify the perpetrator of a cyber attack? Or will it
be used to build up a case against an identified suspect? Can the
data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is
too sweeping and lacks restraint. While it says that traffic data
collection should not disclose identities or content data, such
restraint is but an illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the
data contains. This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from certain bad
elements in these agencies.
Section 12, of course, limits the collection of traffic data to those
"associated with specified communications." But this supposed
limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition,"
choosing whatever specified communication they want. This
evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to
authorize collection of traffic data "in real time" because it is not
possible to get a court warrant that would authorize the search of
what is akin to a "moving vehicle." But warrantless search is
associated with a police officer’s determination of probable cause
that a crime has been committed, that there is no opportunity for
getting a warrant, and that unless the search is immediately
carried out, the thing to be searched stands to be removed.
These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12
provides minimal protection to internet users and that the
procedure envisioned by the law could be better served by
providing for more robust safeguards. His bare assurance that
law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to
track cyberspace communications in real time and determine their
sources and destinations must be narrowly drawn to preclude
abuses.95
Petitioners also ask that the Court strike down Section 12 for
being violative of the void-for-vagueness doctrine and the
overbreadth doctrine. These doctrines however, have been
consistently held by this Court to apply only to free speech cases.
But Section 12 on its own neither regulates nor punishes any type
of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the
government and kindred institutions to monitor individuals and
place them under surveillance in ways that have previously been
impractical or even impossible. "All the forces of a technological
age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a
democratic and a totalitarian society."96 The Court must ensure
that laws seeking to take advantage of these technologies be
written with specificity and definiteness as to ensure respect for
the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic
data and subscriber information relating to communication
services provided by a service provider shall be preserved for a
minimum period of six (6) months from the date of the
transaction. Content data shall be similarly preserved for six (6)
months from the date of receipt of the order from law enforcement
authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for
another six (6) months: Provided, That once computer data
preserved, transmitted or stored by a service provider is used as
evidence in a case, the mere furnishing to such service provider
of the transmittal document to the Office of the Prosecutor shall
be deemed a notification to preserve the computer data until the
termination of the case.
The service provider ordered to preserve computer data shall
keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an
undue deprivation of the right to property. They liken the data
preservation order that law enforcement authorities are to issue
as a form of garnishment of personal property in civil forfeiture
proceedings. Such order prevents internet users from accessing
and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the
internet belong to their authors or recipients and are to be
considered private communications. But it is not clear that a
service provider has an obligation to indefinitely keep a copy of
the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service
providers to keep traffic data and subscriber information relating
to communication services for at least six months from the date of
the transaction and those relating to content data for at least six
months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it
crossed his computer if he was so minded. The service provider
has never assumed responsibility for their loss or deletion while in
its keep.
At any rate, as the Solicitor General correctly points out, the data
that service providers preserve on orders of law enforcement
authorities are not made inaccessible to users by reason of the
issuance of such orders. The process of preserving data will not
unduly hamper the normal transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement
authorities, upon securing a court warrant, shall issue an order
requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours from receipt
of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and
relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the
issuance of a subpoena. Petitioners’ objection is that the
issuance of subpoenas is a judicial function. But it is well-settled
that the power to issue subpoenas is not exclusively a judicial
function. Executive agencies have the power to issue subpoena
as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of
a duly issued court warrant, a function usually lodged in the
hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not
constitute an unlawful search or seizure nor would it violate the
privacy of communications and correspondence. Disclosure can
be made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. —
Where a search and seizure warrant is properly issued, the law
enforcement authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to conduct
interception, as defined in this Act, and:
(a) To secure a computer system or a computer data
storage medium;
(b) To make and retain a copy of those computer data
secured;
(c) To maintain the integrity of the relevant stored
computer data;
(d) To conduct forensic analysis or examination of the
computer data storage medium; and
(e) To render inaccessible or remove those computer data
in the accessed computer or computer and
communications network.
Pursuant thereof, the law enforcement authorities may order any
person who has knowledge about the functioning of the computer
system and the measures to protect and preserve the computer
data therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an extension of time
to complete the examination of the computer data storage
medium and to make a return thereon but in no case for a period
longer than thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will
supplant established search and seizure procedures. On its face,
however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection,
preservation, and use of computer system or data that have been
seized by virtue of a court warrant. The exercise of these duties
do not pose any threat on the rights of the person from whom
they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the
periods as provided in Sections 13 and 15, service providers and
law enforcement authorities, as the case may be, shall
immediately and completely destroy the computer data subject of
a preservation and examination.
Section 17 would have the computer data, previous subject of
preservation or examination, destroyed or deleted upon the lapse
of the prescribed period. The Solicitor General justifies this as
necessary to clear up the service provider’s storage systems and
prevent overload. It would also ensure that investigations are
quickly concluded.
Petitioners claim that such destruction of computer data subject
of previous preservation or examination violates the user’s right
against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable
right to require the service provider to have that copy of the data
saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the
service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or
block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.—
When a computer data is prima facie found to be in violation of
the provisions of this Act, the DOJ shall issue an order to restrict
or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of
expression and violates the right against unreasonable searches
and seizures. The Solicitor General concedes that this provision
may be unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19
indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code,
including malware, as well as files that contain texts, images,
audio, or video recordings. Without having to go into a lengthy
discussion of property rights in the digital space, it is indisputable
that computer data, produced or created by their writers or
authors may constitute personal property. Consequently, they are
protected from unreasonable searches and seizures, whether
while stored in their personal computers or in the service
provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the
right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable. Further, it states that no search
warrant shall issue except upon probable cause to be determined
personally by the judge. Here, the Government, in effect, seizes
and places the computer data under its control and disposition
without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute speech. In
such a case, Section 19 operates as a restriction on the freedom
of expression over cyberspace. Certainly not all forms of speech
are protected. Legislature may, within constitutional bounds,
declare certain kinds of expression as illegal. But for an executive
officer to seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the opinion that
such content violates some law, for to do so would make him
judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it
also disregards jurisprudential guidelines established to
determine the validity of restrictions on speech. Restraints on free
speech are generally evaluated on one of or a combination of
three tests: the dangerous tendency doctrine, the balancing of
interest test, and the clear and present danger rule.101 Section 19,
however, merely requires that the data to be blocked be found
prima facie in violation of any provision of the cybercrime law.
Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into
consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for
being violative of the constitutional guarantees to freedom of
expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions
of Chapter IV hereof specifically the orders from law enforcement
authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum
period or a fine of One hundred thousand pesos (Php100,000.00)
or both, for each and every noncompliance with an order issued
by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of
attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to
situations where non-compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of
Presidential Decree (P.D.) 1829,102 Section 20 necessarily
incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in
and of itself, it would not have had to make reference to any other
statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum
period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall
be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and
the investigation and prosecution of criminal cases by committing
any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still
be done "knowingly or willfully." There must still be a judicial
determination of guilt, during which, as the Solicitor General
assumes, defense and justifications for non-compliance may be
raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.–
There is hereby created, within thirty (30) days from the effectivity
of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy
coordination among concerned agencies and for the formulation
and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the
following powers and functions:
(a) To formulate a national cybersecurity plan and extend
immediate assistance of real time commission of cybercrime
offenses through a computer emergency response team (CERT);
x x x.
Petitioners mainly contend that Congress invalidly delegated its
power when it gave the Cybercrime Investigation and
Coordinating Center (CICC) the power to formulate a national
cybersecurity plan without any sufficient standards or parameters
for it to follow.
In order to determine whether there is undue delegation of
legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first
test, the law must be complete in all its terms and conditions
when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it. The
1avvphi1
second test mandates adequate guidelines or limitations in the
law to determine the boundaries of the delegate’s authority and
prevent the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the
CICC to formulate and implement a national cybersecurity plan.
Also, contrary to the position of the petitioners, the law gave
sufficient standards for the CICC to follow when it provided a
definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk
management approaches, actions, training, best practices,
assurance and technologies that can be used to protect cyber
environment and organization and user’s assets.104 This definition
serves as the parameters within which CICC should work in
formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent
with the policy of the law to "prevent and combat such [cyber]
offenses by facilitating their detection, investigation, and
prosecution at both the domestic and international levels, and by
providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law
and order, which has been considered as sufficient
standard.106 Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that
penalizes posting of unsolicited commercial
communications;
b. Section 12 that authorizes the collection or
recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access
to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a
computer system without right;
b. Section 4(a)(3) that penalizes data interference,
including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting
or acquiring domain name over the internet in bad
faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or
the use or misuse of identifying information
belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the
lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of
child pornography;
g. Section 6 that imposes penalties one degree
higher when crimes defined under the Revised
Penal Code are committed with the use of
information and communications technologies;
h. Section 8 that prescribes the penalties for
cybercrimes;
i. Section 13 that permits law enforcement
authorities to require service providers to preserve
traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of
computer data under a court-issued warrant;
k. Section 15 that authorizes the search, seizure,
and examination of computer data under a court-
issued warrant;
 l. Section 17 that authorizes the destruction of Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
previously preserved computer data after the Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

expiration of the prescribed holding periods;

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION
m. Section 20 that penalizes obstruction of justice of the correct application of Section 7 that authorizes prosecution
in relation to cybercrime investigations; of the offender under both the Revised Penal Code and Republic
Act 10175 to actual cases, WITH THE EXCEPTION of the crimes
n. Section 24 that establishes a Cybercrime of:
Investigation and Coordinating Center (CICC);
1. Online libel as to which, charging the offender under
o. Section 26(a) that defines the CICC’s Powers both Section 4(c)(4) of Republic Act 10175 and Article
and Functions; and 353 of the Revised Penal Code constitutes a violation of
the proscription against double jeopardy; as well as
p. Articles 353, 354, 361, and 362 of the Revised
Penal Code that penalizes libel. 2. Child pornography committed online as to which,
charging the offender under both Section 4(c)(2) of
Further, the Court DECLARES: Republic Act 10175 and Republic Act 9775 or the Anti-
Child Pornography Act of 2009 also constitutes a violation
of the same proscription, and, in respect to these, is VOID
1. Section 4(c)(4) that penalizes online libel as VALID and
and UNCONSTITUTIONAL.
CONSTITUTIONAL with respect to the original author of
the post; but VOID and UNCONSTITUTIONAL with
respect to others who simply receive the post and react to SO ORDERED.
it; and
ROBERTO A. ABAD
2. Section 5 that penalizes aiding or abetting and attempt Associate Justice
in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on WE CONCUR:
Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on See Concurring & Dissenting Opinion
System MARIA LOURDES P. A. SERENO
Chief Justice
Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section See Concurring & (no part due to prior case)
4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Dissenting Opinion PRESBITERO J.
Cybersex; but VOID and UNCONSTITUTIONAL with respect to ANTONIO T. CARPIO VELASCO, JR.*
Associate Justice Associate Justice
 MARIA LOURDES P.A. SERENO
See Separate Concurring Chief Justice
TERESITA J.
Opinion
LEONARDO-DE CASTRO
ARTURO D. BRION
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL MARTIN S. VILLARAMA,

CASTILLO JR.
Associate Justice Associate Justice

I join Justice Brion in all his

positions
JOSE PORTUGAL PEREZ
JOSE CATRAL
Associate Justice
MENDOZA
Associate Justice

No Part
BIENVENIDO L. REYES ESTELA M. PERLAS-
Associate Justice BERNABE*
Associate Justice

See separate dissenting and concurring opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified 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.
G.R. No. 133486 January 28, 2000
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results
through mass media constitute an essential part of the freedoms
of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and
credible elections. Quite the contrary, exit polls — properly
conducted and publicized — can be vital tools in eliminating the
evils of election-fixing and fraud. Narrowly tailored
countermeasures may be prescribed by the Comelec so as to
minimize or suppress the incidental problems in the conduct of
exit polls, without transgressing in any manner the fundamental
rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of
Court assailing Commission on Elections (Comelec) en
banc Resolution No. 98-14191 dated April 21, 1998. In the said
Resolution, the poll body
RESOLVED to approve the issuance of a restraining
order to stop ABS-CBN or any other groups, its agents or
representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same.
The Resolution was issued by the Comelec allegedly upon
"information from [a] reliable source that ABS-CBN (Lopez Group)
has prepared a project, with PR groups, to conduct radio-TV
coverage of the elections . . . and to make [an] exit survey of the .
. . vote during the elections for national officials particularly for
President and Vice President, results of which shall be
[broadcast] immediately."2 The electoral body believed that such
project might conflict with the official Comelec count, as well as
the unofficial quick count of the National Movement for Free
Elections (Namfrel). It also noted that it had not authorized or
deputized Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining
Order prayed for by petitioner. We directed the Comelec to cease
and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any.
In fact, the exit polls were actually conducted and reported by
media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent
Commission acted with grave abuse of discretion amounting to a
lack or excess of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any [other group], its
agents or representatives from conducting exit polls during the . .
. May 11 elections."3
In his Memorandum,4 the solicitor general, in seeking to dismiss
the Petition, brings up additional issues: (1) mootness and (2)
prematurity, because of petitioner's failure to seek a
reconsideration of the assailed Comelec Resolution.
The Court's Ruling
The Petition5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and
academic, because the May 11, 1998 election has already been
held and done with. Allegedly, there is no longer any actual
controversy before us.
The issue is not totally moot. While the assailed Resolution
referred specifically to the May 11, 1998 election, its implications
on the people's fundamental freedom of expression transcend the
past election. The holding of periodic elections is a basic feature
of our democratic government. By its very nature, exit polling is
tied up with elections. To set aside the resolution of the issue now
will only postpone a task that could well crop up again in future
elections.6
In any event, in Salonga v. Cruz Paño, the Court had occasion to
reiterate that it "also has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or rules.
It has the symbolic function of educating bench and bar on the
extent of protection given by constitutional guarantees."7 Since the
fundamental freedoms of speech and of the press are being
invoked here, we have resolved to settle, for the guidance of
posterity, whether they likewise protect the holding of exit polls
and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be
dismissed for petitioner's failure to exhaust available remedies
before the issuing forum, specifically the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural
requirement may be glossed over to prevent a miscarriage of
justice,8 when the issue involves the principle of social justice or
the protection of labor,9 when the decision or resolution sought to
be set aside is a nullity,10 or when the need for relief is extremely
urgent and certiorari is the only adequate and speedy remedy
available.11
The instant Petition assails a Resolution issued by the
Comelec en banc on April 21, 1998, only twenty (20) days before
the election itself. Besides, the petitioner got hold of a copy
thereof only on May 4, 1998. Under the circumstances, there was
hardly enough opportunity to move for a reconsideration and to
obtain a swift resolution in time or the May 11, 1998 elections.
Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court
through a special civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified
individuals or groups of individuals for the purpose of determining
the probable result of an election by confidentially asking
randomly selected voters whom they have voted for, immediately
after they have officially cast their ballots. The results of the
survey are announced to the public, usually through the mass
media, to give an advance overview of how, in the opinion of the
polling individuals or organizations, the electorate voted. In our
electoral history, exit polls had not been resorted to until the
recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that
it is a responsible member of the mass media, committed to
report balanced election-related data, including "the exclusive
results of Social Weather Station (SWS) surveys conducted in
fifteen administrative regions."
It argues that the holding of exit polls and the nationwide
reporting their results are valid exercises of the freedoms of
speech and of the press. It submits that, in precipitately and
unqualifiedly restraining the holding and the reporting of exit polls,
the Comelec gravely abused its discretion and grossly violated
the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in
issuing the assailed Resolution, it gravely abused its discretion. It
insists that the issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest, orderly and
credible May 11, 1998 elections"; and "to protect, preserve and
maintain the secrecy and sanctity of the ballot." It contends that
"the conduct of exit surveys might unduly confuse and influence
the voters," and that the surveys were designed "to condition the
minds of people and cause confusion as to who are the winners
and the [losers] in the election," which in turn may result in
"violence and anarchy."
Public respondent further argues that "exit surveys indirectly
violate the constitutional principle to preserve the sanctity of the
ballots," as the "voters are lured to reveal the contents of ballots,"
in violation of Section 2, Article V of the Constitution;12 and
relevant provisions of the Omnibus Election Code.13 It submits that
the constitutionally protected freedoms invoked by petitioner "are
not immune to regulation by the State in the legitimate exercise of
its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds
that the exit polls pose a "clear and present danger of destroying
the credibility and integrity of the electoral process," considering
that they are not supervised by any government agency and can
in general be manipulated easily. He insists that these polls would
sow confusion among the voters and would undermine the official
tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit
polls. The question can thus be more narrowly defined: May the
Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our
jurisprudence on the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the
Press
The freedom of expression is a fundamental principle of our
democratic government. It "is a 'preferred' right and, therefore,
stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history,
both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other form
of freedom."14
Our Constitution clearly mandates that no law shall be passed
abridging the freedom of speech or of the press.15 In the landmark
case Gonzales v. Comelec,16 this Court enunciated that at the very
least, free speech and a free press consist of the liberty to
discuss publicly and truthfully any matter of public interest without
prior restraint.
The freedom of expression is a means of assuring individual self-
fulfillment, of attaining the truth, of securing participation by the
people in social and political decision-making, and of maintaining
the balance between stability and change.17 It represents a
profound commitment to the principle that debates on public
issues should be uninhibited, robust, and wide open.18 It means
more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures, or
to take refuge in the existing climate of opinion on any of public
consequence. And paraphrasing the eminent Justice Oliver
Wendell Holmes,19 we stress that the freedom encompasses the
thought we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an
absolute exercise of the freedoms of speech and of the press.
Such freedoms could not remain unfettered and unrestrained at
all times and under all circumstances.20 They are not immune to
regulation by the State in the exercise of its police power.21 While
the liberty to think is absolute, the power to express such thought
in words and deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss
two theoretical test in determining the validity of restrictions to
such freedoms, as follows:
These are the "clear and present danger" rule and the
"dangerous tendency" rule. The first, as interpreted in a
number of cases, means that the evil consequence of the
comment or utterance must be "extremely serious and the
degree of imminence extremely high" before the utterance
can be punished. The danger to be guarded against is the
"substantive evil" sought to be prevented. . . .23
The "dangerous tendency" rule, on the other hand, . . .
may be epitomized as follows: if the words uttered create
a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not
necessary that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it
necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to
prevent.24
Unquestionably, this Court adheres to the "clear and present
danger" test. It implicitly did in its earlier decisions in Primicias v.
Fugoso25 and American Bible Society v. City of Manila;26 as well as
in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong
v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently,
in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for
the "clear and present danger" doctrine, the Court echoed the
words of Justice Holmes: "The question in every case is whether
the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree."32
A limitation on the freedom of expression may be justified only by
a danger of such substantive character that the state has a right
to prevent. Unlike in the "dangerous tendency" doctrine, the
danger must not only be clear but also present. "Present" refers
to the time element; the danger must not only be probable but
very likely to be inevitable.33 The evil sought to be avoided must be
so substantive as to justify a clamp over one's mouth or a
restraint of a writing instrument.34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of
expression, and any restriction is treated an exemption. The
power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity.35 And it is respondent's burden
to overthrow such presumption. Any act that restrains speech
should be greeted with furrowed brows,36 so it has been said.
To justify a restriction, the promotion of a substantial government
interest must be clearly shown.37 Thus:
A government regulation is sufficiently justified if it is
within the constitutional power of the government, if it
furthers an important or substantial government interest; if
the governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.38
Hence, even though the government's purposes are legitimate
and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties, when the end can be more
narrowly achieved.39
The freedoms of speech and of the press should all the more be
upheld when what is sought to be curtailed is the dissemination of
information meant. to add meaning to the equally vital right of
suffrage.40 We cannot support any ruling or order "the effect of
which would be to nullify so vital a constitutional right as free
speech."41 When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the
electorate to know is invoked against actions allegedly made to
assure clean and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen
and the State's power to regulate should not be antagonistic.
There can be no free and honest elections if, in the efforts to
maintain them, the freedom to speak and the right to know are
unduly curtailed.42
True, the government has a stake in protecting the fundamental
right to vote by providing voting places that are safe and
accessible. It has the duty to secure the secrecy of the ballot and
to preserve the sanctity and the integrity of the electoral process.
However, in order to justify a restriction of the people's freedoms
of speech and of the press, the state's responsibility of ensuring
orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls
generate important research data which may be used to study
influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for election-
day projections, but also for long-term research.43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as
having been issued pursuant to its constitutional mandate to
ensure a free, orderly, honest, credible and peaceful election.
While admitting that "the conduct of an exit poll and the broadcast
of the results thereof [are] . . . an exercise of press freedom," it
argues that "[p]ress freedom may be curtailed if the exercise
thereof creates a clear and present danger to the community or it
has a dangerous tendency." It then contends that "an exit poll has
the tendency to sow confusion considering the randomness of
selecting interviewees, which further make[s] the exit poll highly
unreliable. The probability that the results of such exit poll may
not be in harmony with the official count made by the Comelec . .
. is ever present. In other words, the exit poll has a clear and
present danger of destroying the credibility and integrity of the
electoral process."
Such arguments are purely speculative and clearly untenable.
First, by the very nature of a survey, the interviewees or
participants are selected at random, so that the results will as
much as possible be representative or reflective of the general
sentiment or view of the community or group polled. Second, the
survey result is not meant to replace or be at par with the official
Comelec count. It consists merely of the opinion of the polling
group as to who the electorate in general has probably voted for,
based on the limited data gathered from polled individuals.
Finally, not at stake here are the credibility and the integrity of the
elections, which are exercises that are separate and independent
from the exit polls. The holding and the reporting of the results of
exit polls cannot undermine those of the elections, since the
former is only part of the latter. If at all, the outcome of one can
only be indicative of the other.
The Comelec's concern with the possible noncommunicative
effect of exit polls — disorder and confusion in the voting centers
— does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without
qualification as to whether the polling is disruptive or
not.44 Concededly, the Omnibus Election Code prohibits disruptive
behavior around the voting centers.45 There is no showing,
however, that exit polls or the means to interview voters cause
chaos in voting centers. Neither has any evidence been
presented proving that the presence of exit poll reporters near an
election precinct tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of
exit poll data and their use for any purpose. The valuable
information and ideas that could be derived from them, based on
the voters' answer to the survey questions will forever remain
unknown and unexplored. Unless the ban is restrained,
candidates, researchers, social scientists and the electorate in
general would be deprived of studies on the impact of current
events and of election-day and other factors on voters' choices. 1âwphi1.nêt
In Daily Herald Co. v. Munro,46 the US Supreme Court held that a
statute, one of the purposes of which was to prevent the
broadcasting of early returns, was unconstitutional because such
purpose was impermissible, and the statute was neither narrowly
tailored to advance a state interest nor the least restrictive
alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify
speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly
affect the voters' choices is impermissible, so is impermissible, so
is regulating speech via an exit poll restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be
justified. It does not leave open any alternative channel of
communication to gather the type of information obtained through
exit polling. On the other hand, there are other valid and
reasonable ways and means to achieve the Comelec end of
avoiding or minimizing disorder and confusion that may be
brought about by exit surveys.
For instance, a specific limited area for conducting exit polls may
be designated. Only professional survey groups may be allowed
to conduct the same. Pollsters may be kept at a reasonable
distance from the voting center. They may be required to explain
to voters that the latter may refuse interviewed, and that the
interview is not part of the official balloting process. The pollsters
may further be required to wear distinctive clothing that would
show they are not election officials.48 Additionally, they may be
required to undertake an information campaign on the nature of
the exercise and the results to be obtained therefrom. These
measures, together with a general prohibition of disruptive
behavior, could ensure a clean, safe and orderly election.
For its part, petitioner ABS-CBN explains its survey methodology
as follows: (1) communities are randomly selected in each
province; (2) residences to be polled in such communities are
also chosen at random; (3) only individuals who have already
voted, as shown by the indelible ink on their fingers, are
interviewed; (4) the interviewers use no cameras of any sort; (5)
the poll results are released to the public only on the day after the
elections.49 These precautions, together with the possible
measures earlier stated, may be undertaken to abate the
Comelec's fear, without consequently and unjustifiably stilling the
people's voice.
With the foregoing premises, we conclude that the interest of the
state in reducing disruption is outweighed by the drastic
abridgment of the constitutionally guaranteed rights of the media
and the electorate. Quite the contrary, instead of disrupting
elections, exit polls — properly conducted and publicized — can
be vital tools for the holding of honest, orderly, peaceful and
credible elections; and for the elimination of election-fixing, fraud
and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly
transgress the sanctity and the secrecy of the ballot is off-tangent
to the real issue. Petitioner does not seek access to the ballots
cast by the voters. The ballot system of voting is not at issue
here.
The reason behind the principle of ballot secrecy is to avoid vote
buying through voter identification. Thus, voters are prohibited
from exhibiting the contents of their official ballots to other
persons, from making copies thereof, or from putting
distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by
particular voters or disclosing those of disabled or illiterate voters
who have been assisted. Clearly, what is forbidden is the
association of voters with their respective votes, for the purpose
of assuring that the votes have been cast in accordance with the
instructions of a third party. This result cannot, however, be
achieved merely through the voters' verbal and confidential
disclosure to a pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not actually
exposed. Furthermore, the revelation of whom an elector has
voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed, narrowly tailored
countermeasures may be prescribed by the Comelec, so as to
minimize or suppress incidental problems in the conduct of exit
polls, without transgressing the fundamental rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary
Restraining Order issued by the Court on May 9, 1998 is made
PERMANENT. Assailed Minute Resolution No. 98-1419 issued
by the Comelec en banc on April 21, 1998 is hereby NULLIFIED
and SET ASIDE. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Melo and Mendoza, JJ., are join the separate opinion of Justice
Vitug.
Pardo, J., took no part.
Separate Opinions
KAPUNAN, J., dissenting opinion;
I share the view of Justice Jose C. Vitug in his Separate Opinion
that the case is technically moot. Since the Comelec has not
declared exit polls to be illegal and neither did the petitioner
present its methodology or system of conducting the exit polls to
the poll body, the nullification of the Comelec's questioned
resolution is bereft of empirical basis. The decision of this Court
constitutes a mere academic exercise in view of the premature
nature of the issues and the lack of "concreteness" of the
controversy. I wish however, to express my thoughts on a few
material points.
The majority opinion cites the general rules that any restrictions to
freedom of expression would be burdened with a presumption of
invalidity and should be greeted with "furrowed brews."1 While this
has been the traditional approach, this rules does not apply
where, as in this case, the Comelec exercised its Constitutional
functions of securing the secrecy and sanctity of the ballots and
ensuring the integrity of the elections. Thus, Mr. Justice Feliciano
in National Press (NPC) v. Comelec2 wrote:
The technical effect of Article IX (C) (4) of the Constitution
may be seen to be that no presumption of invalidity arises
in respect of supervisory or regulatory authority on the
part of the COMELEC for the purpose of securing equal
opportunity among candidates for political office, although
such supervision or regulation may result in some
limitation of the right of free speech and free press. For
supervision or regulation of the operations of media
enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the
general, time honored one — that a statute is presumed
to be constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly
and convincingly proving that assertion.3
The NPC decision holds that if the right to free speech collides occur in some areas designated as election hot spots.7 Such
with a norm of constitutional stature,4 the rule on heavy being the case, exit poll results made public after the day of
presumption of invalidity does not apply. voting in the regular elections but before the conduct of special
elections in these areas may potentially pose the danger of
Our Constitution mandates the Comelec to enforce and "trending," "bandwagon-effect" and disruption of elections.
administer laws and regulations relative to the conduct of
elections and to secure the secrecy and sanctity of the ballots to In view of the foregoing discussion, I believe the Comelec
ensure orderly, honest, credible and peaceful elections.5 This committed no abuse of discretion in issuing the assailed
Constitutional provision effectively displaces the general temporary restraining order stopping petitioner from conducting
presumption of invalidity in favor of the presumption that Comelec exit polls. I, therefore, vote to DENY the petition.
acted in the exercise of its constitutionally mandated powers. If no
presumption of invalidity arises, I see no occasion for the
application of the "clear and present danger test." As this Court,
through Mr. Justice Mendoza, succinctly observed:
VITUG, J., separate opinion;
. . . the clear-and-present danger test is not, however, a
sovereign remedy for all free speech problems. As has
The instant petition, now technically moot, presents issues so
been pointed out by a thoughtful student of constitutional
significantly that a slights change of circumstances can have a
law, it was originally formulated for the criminal law and
decisive effect on, and possibly spell a difference in, the final
only later appropriated for free speech cases. For the
outcome of the case. I am not inclined to take the case in an
criminal law is necessarily concerned with the line at
academic fashion and pass upon the views expressed by either
which innocent preparation ends and guilty conspiracy or
party in preemptive judgment.
attempt begins. Clearly, it is inappropriate as a test for
determining the constitutional validity of law which, like
§11(b) of R.A. No. 6646, are not concerned with the While I understand what the ponencia is saying quite laudably, I
content of political ads but only with their incidents. To also appreciate, upon the other hand, the concern of the
apply the clear-and-present danger test to such regulatory Commission on Elections, i.e., that the conduct of exit polls can
measures would be like using a sledgehammer to drive a have some adverse effects on the need to preserve the sanctity
nail when a regular hammer is all that is needed.6 of the ballot. The Commission performs an indispensable task of
ensuring free, honest, and orderly elections and of guarding
against any frustration of the true will of the people. Expectedly, it
On the matter of methodology in conducting polls, petitioner gave
utilizes all means available within its power and authority to
assurance that the exit poll results will only be made public a day
prevent the electoral process from being manipulated and
after the elections, in order to allay fears of "trending,"
rendered an absurdity. Like my colleagues, I greatly prize the
"bandwagon-effect" or disruption. This offers little comfort
freedom of expression but, so also, I cherish no less the right of
considering the state of our country's electoral system. Unlike in
the people to express their will by means of the ballot. In any
other countries where voting and counting are computerized, our
case, I must accept the reality that the right to information and
elections are characterized by snail-paced counting. It is not
free speech is not illimitable and immune from the valid exercise
infrequent that postponement, failure or annulment of elections
of an ever demanding and pervasive police power. Whether any
kind of restraint should be upheld or declared invalid in the proper
balancing of interest is one that must be resolved at any given
moment, not on perceived circumstances, but on prevailing facts.

Neither of the advocations proffered by the parties in this

instance, I believe, should be foreclosed by the Court at this time.

I vote, therefore, to dismiss the petition on the foregoing thesis.

G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and
KAMAHALAN PUBLISHING CORPORATION, doing business
as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-
stock, non-profit social research institution conducting surveys in
various fields, including economics, politics, demography, and
social development, and thereafter processing, analyzing, and
publicly reporting the results thereof. On the other hand, petitioner
Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features
news- worthy items of information including election surveys. 1âwphi1.nêt
Petitioners brought this action for prohibition to enjoin the
Commission on Elections from enforcing §5.4 of RA. No.9006
(Fair Election Act), which provides:
Surveys affecting national candidates shall not be
published fifteen (15) days before an election and surveys
affecting local candidates shall not be published seven (7)
days be- fore an election.
The term "election surveys" is defined in §5.1 of the law as
follows:
Election surveys refer to the measurement of opinions
and perceptions of the voters as regards a candidate's
popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters
preference for candidates or publicly discussed issues
during the campaign period (hereafter referred to as
"Survey").
The implement §5.4, Resolution 3636, §24(h), dated March I,
2001, of the COMELEC enjoins –
Surveys affecting national candidates shall not be
published fifteen (15) days before an election and surveys
affecting local candidates shall not be published seven (7)
days be- fore an election.
Petitioner SWS states that it wishes to conduct an election survey
throughout the period of the elections both at the national and
local levels and release to the media the results of such survey as
well as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish
election survey results up to the last day of the elections on May
14,2001.
Petitioners argue that the restriction on the publication of election
survey results constitutes a prior restraint on the exercise of
freedom of speech without any clear and present danger to justify
such restraint. They claim that SWS and other pollsters
conducted and published the results of surveys prior to the 1992,
1995, and 1998 elections up to as close as two days before the
election day without causing confusion among the voters and that
there is neither empirical nor historical evidence to support the
conclusion that there is an immediate and inevitable danger to tile
voting process posed by election surveys. They point out that no
similar restriction is imposed on politicians from explaining their
opinion or on newspapers or broadcast media from writing and
publishing articles concerning political issues up to the day of the
election. Consequently, they contend that there is no reason for
ordinary voters to be denied access to the results of election
surveys, which are relatively objective.
1âwphi1.nêt
Respondent Commission on Elections justifies the restrictions in
§5.4 of R.A. No. 9006 as necessary to prevent the manipulation
and corruption of the electoral process by unscrupulous and
erroneous surveys just before the election. It contends that (1) the
prohibition on the publication of election survey results during the
period proscribed by law bears a rational connection to the
objective of the law, i.e., the prevention of the debasement of the
electoral process resulting from manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the
"evils" sought to be prevented; and (3) the impairment of freedom
of expression is minimal, the restriction being limited both in
duration, i.e., the last 15 days before the national election and the
last 7 days before a local election, and in scope as it does not
prohibit election survey results but only require timeliness.
Respondent claims that in National Press Club v. COMELEC,1 a
total ban on political advertisements, with candidates being
merely allocated broadcast time during the so-called COMELEC
space or COMELEC hour, was upheld by this Court. In contrast,
according to respondent, it states that the prohibition in §5.4 of
RA. No. 9006 is much more limited.
For reasons hereunder given, we hold that §5.4 of R.A. No. 9006
constitutes an unconstitutional abridgment of freedom of speech,
expression, and the press.
To be sure, §5.4Iays a prior restraint on freedom of speech,
expression, and the press prohibiting the publication of election
survey results affecting candidates within the prescribed periods
of fifteen (15) days immediately preceding a national election
seven (7) days before a local election. Because of tile preferred
status of tile constitutional rights of speech, expression, and he
press, such a measure is vitiated by a weighty presumption of
invalidity.2 Indeed, any system of prior restraints of expression
comes to this Court bearing a heavy Presumption against its
constitutional validity. ...The Government thus carries a heavy
burden of showing justification for in enforcement of such
restraint. "'3 There, thus a reversal of the normal presumption of
validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, §4 of the
Constitution, which gives the COMELEC supervisory power to
regulate the enjoyment or utilization of franchise for the operation
of media of communication, no presumption of invalidity attaches
to a measure like §5.4. For as we have pointed out in sustaining
tile ban on media political advertisements, the grant of power to
the COMELEC under Art. IX-C, §4 is limited to ensuring "equal
opportunity, time, space, and the right to reply" as well as uniform
and reasonable rates of charges for the use of such media
facilities "public information campaigns and forums among
candidates."4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution
may be seen to be that no presumption of invalidity
arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the Purpose of
securing equal opportunity among candidates for political
office, although such supervision or regulation may result
in some limitation of the rights of free speech and free
press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate
the test of clear and present danger for determining the validity of
§5.4. Indeed, as has been pointed out in Osmeña v.
COMELEC,6 this test was originally formulated for the criminal law
and only later appropriated for free speech cases. Hence, while it
may be useful for determining the validity of laws dealing with
inciting to sedition or incendiary speech, it may not be adequate
for such regulations as the one in question. For such a test is
concerned with questions of the gravity and imminence of the
danger as basis for curtailing free speech, which is not the case
of §5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of
balancing by "weighing and balancing the circumstances
to determine whether public interest [in free, orderly,
honest, peaceful and credible elections] is served by the
regulation of the free enjoyment of the rights" (page 7). After
canvassing the reasons for the prohibition, i.e., to prevent last-
minute pressure on voters, the creation of bandwagon effect to
favor candidates, misinformation, the junking" of weak and
"losing" candidates by their parties, and the form of election
cheating called "dagdag-bawas" and invoking the State's power
to supervise media of information during the election period
(pages 11-16), the dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant
objectives of Section 5.4, It may be seen that its
limiting impact on the rights of free speech and of the
press is not unduly repressive or unreasonable. In Indeed,
it is a mere restriction, not an absolute prohibition, on the
publication of election surveys. It is limited in duration; it
applies only during the period when the voters are
presumably contemplating whom they should elect and
when they are most susceptible to such unwarranted
persuasion. These surveys may be published thereafter.
(Pages 17-18)
The dissent does not, however, show why, on balance, these
considerations should outweigh the value of freedom of
expression. Instead, reliance is placed on Art. IX-C, §4. As
already stated, the purpose of Art. IX-C, §4 is to "ensure equal
opportunity, time, and space and the right of reply, including
reasonable, equal rates therefor for public information campaigns
and forums among candidates. " Hence the validity of the ban on
media advertising. It is noteworthy that R.A. No. 9006, § 14 has
lifted the ban and now allows candidates to advertise their
candidacies in print and broadcast media. Indeed, to sustain the
ban on the publication of survey results would sanction the
censorship of all speaking by candidates in an election on the
ground that the usual bombasts and hyperbolic claims made
during the campaigns can confuse voters and thus debase the
electoral process.
In sum, the dissent has engaged only in a balancing at the
margin. This form of ad hoc balancing predictably results in
sustaining the challenged legislation and leaves freedom of
speech, expression, and the press with little protection. For
anyone who can bring a plausible justification forward can easily
show a rational connection between the statute and a legitimate
governmental purpose. In contrast, the balancing of interest
undertaken by then Justice Castro
in Gonzales v. COMELEC,7 from which the dissent in this case
takes its cue, was a strong one resulting in his conclusion that ,
§50-B of R.A. No. 4880, which limited the period of election
campaign and partisan political activity, was an unconstitutional
abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground
that there are other countries - 78, according to the Solicitor
General, while the dissent cites 28 - which similarly impose
restrictions on the publication of election surveys. At best this
survey is inconclusive. It is note worthy that in the United States
no restriction on the publication of election survey results exists. It
cannot be argued that this is because the United States is a
mature democracy. Neither are there laws imposing an embargo
on survey results, even for a limited period, in other countries. As
pointed out by petitioners, the United Kingdom, Austria, Belgium,
Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta,
Macedonia, the Netherlands, Norway, Sweden, and Ukraine,
some of which are no older nor more mature than the Philippines
in political development, do not restrict the publication of election
survey results.
What test should then be employed to determine the
constitutional validity of §5.4? The United States Supreme Court,
through Chief Justice Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is
within the constitutional power of the Government; [2] if it
furthers an important or substantial governmental interest;
[3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of
 speech, expression and press] is no greater than is
essential to the furtherance of that interest.8
This is so far the most influential test for distinguishing content-
based from content neutral regulations and is said to have
"become canonical in the review of such laws."9 is noteworthy that
the O 'Brien test has been applied by this Court in at least two
cases.10
Under this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such
governmental interest is "not unrelated to the Expression of free
expression." Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should nevertheless be
invalidated if the restriction on freedom of expression is greater
than is necessary to achieve the governmental purpose in
question.
Our inquiry should accordingly focus on these two considerations
as applied to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test
because the causal connection of expression to the asserted
governmental interest makes such interest "not related to the
suppression of free expression." By prohibiting the publication of
election survey results because of the possibility that such
publication might undermine the integrity of the election, §5.4
actually suppresses a whole class of expression, while allowing
the expression of opinion concerning the same subject matter by
newspaper columnists, radio and TV commentators, armchair
theorists, and other opinion takers. In effect, §5.4 shows a bias
for a particular subject matter, if not viewpoint, by referring
personal opinion to statistical results. The constitutional
guarantee of freedom of expression means that "the government
has no power to restrict expression because of its message, its
ideas, its subject matter, or its content."11 The inhibition of speech
should be upheld only if the expression falls within one of the few
unprotected categories dealt with in Chaplinsky v. New
Hampshire, 12 thus:
There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or 'fighting' words -
those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. [S]uch
utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality
Nor is there justification for the prior restraint which §5.4Iays on
protected speech. Near v. Minnesota,13 it was held:
[The] protection even as to previous restraint is not
absolutely unlimited. But the limitation has been
recognized only in exceptional cases…. No one would
question but that a government might prevent actual
obstruction to its recruiting service or the publication of
the sailing dates transports or the number and location of
troops. On similar grounds, the primary requirements of
decency may be enforced against obscene publications.
The security of the community life may be protected
against incitements to acts of violence and overthrow by
force of orderly government…
Thus, contrary to the claim of the Solicitor General, the prohibition
imposed by §5.4 cannot be justified on the ground that it is only
for a limited period and is only incidental. The prohibition may be
for a limited time, but the curtailment of the right of expression is
direct, absolute, and substantial. It constitutes a total suppression
of a category of speech and is not made less so because it is only
for a period of fifteen (15) days immediately before a national
election and seven (7) days immediately before a local election. ..
This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b),
which this Court found to be valid in National Press Club v.
COMELEC,14 and Osmeña v. COMELEC.15 For the ban imposed
by R.A. No. 6646, §11(b) is not only authorized by a specific
constitutional provision,16 but it also provided an alternative so
that, as this Court pointed out in Osmeña, there was actually no
ban but only a substitution of media advertisements by the
COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted
is unrelated to the suppression of speech and the resulting
restriction of free expression is only incidental, §5.4 nonetheless
fails to meet criterion [4] of the O 'Brien test, namely, that the
restriction be not greater than is necessary to further the
governmental interest. As already stated, §5.4 aims at the
prevention of last-minute pressure on voters, the creation of
bandwagon effect, "junking" of weak or "losing" candidates, and
resort to the form of election cheating called "dagdag-bawas."
Praiseworthy as these aims of the regulation might be, they
cannot be attained at the sacrifice of the fundamental right of
expression, when such aim can be more narrowly pursued by
punishing unlawful acts, rather than speech because of
apprehension that such speech creates the danger of such evils.
Thus, under the Administrative Code of 1987,17 the COMELEC is
given the power:
To stop any illegal activity, or confiscate, tear down, and
stop any unlawful, libelous, misleading or false election
propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition
contained in §5.4. Pursuant to this power of the COMELEC, it can
confiscate bogus survey results calculated to mislead voters.
Candidates can have their own surveys conducted. No right of
reply can be invoked by others. No principle of equality is
involved. It is a free market to which each candidate brings his
ideas. As for the purpose of the law to prevent bandwagon
effects, it is doubtful whether the Government can deal with this
natural-enough tendency of some voters. Some voters want to be
identified with the "winners." Some are susceptible to the herd
mentality. Can these be legitimately prohibited by suppressing the
publication of survey results, which are a form of expression? It
has been held that "[mere] legislative preferences or beliefs
respecting matters of public convenience may well support
regulation directed at other personal activities, but be insufficient
to justify such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions."18
To summarize then, we hold that §5.4 is invalid because (1) it
imposes a prior restraint on the freedom of expression, (2) it is a
direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by
means other than suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A,
§7 of the Constitution, its decisions, orders, or resolution may be
reviewed by this Court only certiorari. The flaws in this argument
is that it assumes that its Resolution 3636, March 1, 2001 is a
"decision, order, or resolution" within the meaning of Art. IX-A, §7.
Indeed, counsel for COMELEC maintain that Resolution 3636
was "rendered" by the Commission. However, the Resolution
does not purport to adjudicate the right of any party. It is not an
exercise by the COMELEC of its adjudicatory power to settle the
claims of parties. To the contrary, Resolution 3636 clearly states
that it is promulgated to implement the provisions of R.A. No.
9006. Hence, there is no basis for COMELEC's claim that this
petition for prohibition is inappropriate. Prohibition has been fund
appropriate for testing the constitutionality of various election
laws, rules, and regulations.19
WHEREFORE, the petition for prohibited GRANTED and §5.4 of
R.A. No. 9006 §24(h) of COMELEC Resolution 3636, March 1,
2001, are declared unconstitutional. SO ORDERED.
1âwphi1.nêt 1âwphi1.nêt
Davide, JI:, C.J., Vitug, and Gonzaga-Reyes, JJ., concur.
G.R. No. 205357 September 2, 2014 G.R. No. 206360

GMA NETWORK, INC., Petitioner, RADIO MINDANAO NETWORK, INC., Petitioner,

vs. vs.
COMMISSION ON ELECTIONS, Respondent. COMMISSION ON ELECTIONS, Respondent.

SENATOR ALAN PETER "COMPAÑERO" S. DECISION

CAYETANO,Petitioner-Intervenor.
PERALTA, J.:
x-----------------------x
"The clash of rights demands a delicate balancing of interests
G.R. No. 205374 approach which is a 'fundamental postulate of constitutional
law.'"1
ABC DEVELOPMENT CORPORATION, Petitioner,
vs. Once again the Court is asked to draw a carefully drawn balance
COMMISSION ON ELECTIONS, Respondent. in the incessant conflicts between rights and regulations, liberties
and limitations, and competing demands of the different
x-----------------------x segments of society. Here, we are confronted with the need to
strike a workable and viable equilibrium between a constitutional
G.R. No. 205592 mandate to maintain free, orderly, honest, peaceful and credible
elections, together with the aim of ensuring equal opportunity,
time and space, and the right to reply, including reasonable,
MANILA BROADCASTING COMPANY, INC. and
equal rates therefor, for public information campaigns and forums
NEWSOUNDS BROADCASTING NETWORK, INC., Petitioner,
among candidates,2 on one hand, and the imperatives of a
vs.
republican and democratic state,3 together with its guaranteed
COMMISSION ON ELECTIONS, Respondent.
rights of suffrage,4 freedom of speech and of the press,5 and the
people's right to information,6 on the other.
x-----------------------x
In a nutshell, the present petitions may be seen as in search of
G.R. No. 205852 the answer to the question - how does the Charter of a republican
and democratic State achieve a viable and acceptable balance
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) between liberty, without which, government becomes an
and ABS-CBN CORPORATION, Petitioners, unbearable tyrant, and authority, without which, society becomes
vs. an intolerable and dangerous arrangement?
COMMISSION ON ELECTIONS, Respondent.
Assailed in these petitions are certain regulations promulgated by
x-----------------------x the Commission on Elections (COMELEC) relative to the conduct
of the 2013 national and local elections dealing with political
advertisements. Specifically, the petitions question the
constitutionality of the limitations placed on aggregate airtime
allowed to candidates and political parties, as well as the
requirements incident thereto, such as the need to report the
same, and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue the alleged
unconstitutionality of Section 9 (a) of COMELEC Resolution No.
9615 (Resolution) limiting the broadcast and radio advertisements
of candidates and political parties for national election positions to
an aggregate total of one hundred twenty (120) minutes and one
hundred eighty (180) minutes, respectively. They contend that
such restrictive regulation on allowable broadcast time violates
freedom of the press, impairs the people's right to suffrage as well
as their right to information relative to the exercise of their right to
choose who to elect during the forth coming elections.
The heart of the controversy revolves upon the proper
interpretation of the limitation on the number of minutes that
candidates may use for television and radio advertisements, as
provided in Section 6 of Republic Act No. 9006 (R.A. No. 9006),
otherwise known as the Fair Election Act. Pertinent portions of
said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All registered
parties and bona fide candidates shall have equal access to
media time and space. The following guidelines may be amplified
on by the COMELEC:
xxxx
6.2 (a) Each bona fide candidate or registered political party for a
nationally elective office shall be entitled to not more than one
hundred twenty (120) minutes of television advertisement and
one hundred eighty (180) minutes of radio advertisement whether
by purchase or donation.
b. Each bona fide candidate or registered political party for a
locally elective office shall be entitled to not more than sixty ( 60)
minutes of television advertisement and ninety (90) minutes of
radio advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast
station or entity to submit to the COMELEC a copy of its
broadcast logs and certificates of performance for the review and
verification of the frequency, date, time and duration of
advertisements broadcast for any candidate or political party.
During the previous elections of May 14, 2007 and May 10, 2010,
COMELEC issued Resolutions implementing and interpreting
Section 6 of R.A. No. 9006, regarding airtime limitations, to mean
that a candidate is entitled to the aforestated number of minutes
"per station."7 For the May 2013 elections, however, respondent
COMELEC promulgated Resolution No. 9615 dated January 15,
2013, changing the interpretation of said candidates' and political
parties' airtime limitation for political campaigns or advertisements
from a "per station" basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development
Corporation (ABC), GMA Network, Incorporated ( GMA), Manila
Broadcasting Company, Inc. (MBC), Newsounds Broadcasting
Network, Inc. (NBN), and Radio Mindanao Network, Inc. (RMN)
are owners/operators of radio and television networks in the
Philippines, while petitioner Kapisanan ng mga Brodkaster ng
Pilipinas (KBP) is the national organization of broadcasting
companies in the Philippines representing operators of radio and
television stations and said stations themselves. They sent their
respective letters to the COMELEC questioning the provisions of
the aforementioned Resolution, thus, the COMELEC held public
hearings. Thereafter, on February 1, 2013, respondent issued
Resolution No. 9631 amending provisions of Resolution No.
9615. Nevertheless, petitioners still found the provisions
objectionable and oppressive, hence, the present petitions.
All of the petitioners assail the following provisions of the
Resolution:
a) Section 7 (d),8 which provides for a penalty of
suspension or revocation of an offender's franchise or
permit, imposes criminal liability against broadcasting
entities and their officers in the event they sell airtime in
excess of the size, duration, or frequency authorized in
the new rules;
b) Section 9 (a),9 which provides for an "aggregate total"
airtime instead of the previous "per station" airtime for
political campaigns or dvertisements, and also required
prior COMELEC approval for candidates' television and
radio guestings and appearances; and
c) Section 14,10 which provides for a candidate's "right to
reply."
In addition, petitioner ABC also questions Section 1 (4) 11 thereof,
which defines the term "political advertisement" or "election
propaganda," while petitioner GMA further assails Section
35, 12 which states that any violation of said Rules shall constitute
an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-
Intervenor) filed a Motion for Leave to Intervene and to File and
Admit the Petition-in-Intervention, which was granted by the Court
per its Resolution dated March 19, 2013. Petitioner-Intervenor
also assails Section 9 (a) of the Resolution changing the
interpretation of candidates' and political parties' airtime limitation
for political campaigns or advertisements from a "per station"
basis, to a "total aggregate" basis. Petitioners allege that
Resolutions No. 9615 and 9631, amending the earlier Resolution,
are unconstitutional and issued without jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction, for
the reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution
provides for a very restrictive aggregate airtime limit and a vague
meaning for a proper computation of "aggregate total" airtime,
and violates the equal protection guarantee, thereby defeating the
intent and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which imposes a notice
requirement, is vague and infringes on the constitutionally
protected freedom of speech, of the press and of expression, and
on the right of people to be informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it
imposes an unreasonable and almost impossible burden on
broadcast mass media of monitoring a candidate's or political
party's aggregate airtime, otherwise, it may incur administrative
and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for
unlawfully criminalizing acts not prohibited and penalized as
criminal offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a candidate's or
political party's "right to reply," is likewise assailed to be
unconstitutional for being an improper exercise of the
COMELEC's regulatory powers; for constituting prior restraint and
infringing petitioners' freedom of expression, speech and the
press; and for being violative of the equal protection guarantee. In
addition to the foregoing, petitioner GMA further argues that the
Resolution was promulgated without public consultations, in
violation of petitioners' right to due process. Petitioner ABC also
avers that the Resolution's definition of the terms "political
advertisement" and "election propaganda" suffers from
overbreadth, thereby producing a "chilling effect," constituting
prior restraint.
On the other hand, respondent posits in its Comment and
Opposition13 dated March 8, 2013, that the petition should be
denied based on the following reasons:
Respondent contends that the remedies of certiorari and
prohibition are not available to petitioners, because the writ of
certiorari is only available against the COMELEC's adjudicatory or
quasi-judicial powers, while the writ of prohibition only lies against
the exercise of judicial, quasijudicial or ministerial functions. Said
writs do not lie against the COMELEC's administrative or rule-
making powers.
Respondent likewise alleges that petitioners do not have locus
standi, as the constitutional rights and freedoms they enumerate
are not personal to them, rather, they belong to candidates,
political parties and the Filipino electorate in general, as the
limitations are imposed on candidates, not on media outlets. It
argues that petitioners' alleged risk of exposure to criminal liability
is insufficient to give them legal standing as said "fear of injury" is
highly speculative and contingent on a future act.
Respondent then parries petitioners' attack on the alleged
infirmities of the Resolution's provisions.
Respondent maintains that the per candidate rule or total
aggregate airtime limit is in accordance with R.A. No. 9006 as this
would truly give life to the constitutional objective to equalize
access to media during elections. It sees this as a more effective
way of levelling the playing field between candidates/political
parties with enormous resources and those without much.
Moreover, the COMELEC's issuance of the assailed Resolution is
pursuant to Section 4, Article IX (C) of the Constitution which
vests on the COMELEC the power to supervise and regulate,
during election periods, transportation and other public utilities, as
well as mass media, 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, and 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.
This being the case, then the Resolutions cannot be said to have
been issued with grave abuse of discretion amounting to lack of
jurisdiction.
Next, respondent claims that the provisions are not vague
because the assailed Resolutions have given clear and adequate
mechanisms to protect broadcast stations from potential liability
arising from a candidate's or party's violation of airtime limits by
putting in the proviso that the station "may require buyer to
warrant under oath that such purchase [of airtime] is not in
excess of size, duration or frequency authorized by law or these
rules." Furthermore, words should be understood in the sense
that they have in common usage, and should be given their
ordinary meaning. Thus, in the provision for the right to reply,
"charges" against candidates or parties must be understood in
the ordinary sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring
notice to the COMELEC for appearances or guestings of
candidates in bona fide news broadcasts. It points out that the
fact that notice may be given 24 hours after first broadcast only
proves that the mechanism is for monitoring purposes only, not
for censorship. Further, respondent argues, that for there to be
prior restraint, official governmental restrictions on the press or
other forms of expression must be done in advance of actual
publication or dissemination. Moreover, petitioners are only
required to inform the COMELEC of candidates'/parties'
guestings, but there is no regulation as to the content of the news
or the expressions in news interviews or news documentaries.
Respondent then emphasized that the Supreme Court has held
that freedom of speech and the press may be limited in light of
the duty of the COMELEC to ensure equal access to
opportunities for public service.
With regard to the right to reply provision, respondent also does
not consider it as restrictive of the airing of bona fide news
broadcasts. More importantly, it stressed, the right to reply is
enshrined in the Constitution, and the assailed Resolutions
provide that said right can only be had after going through
administrative due process. The provision was also merely lifted
from Section 10 of R.A. No. 9006, hence, petitioner ABC is
actually attacking the constitutionality of R.A. No. 9006, which
cannot be done through a collateral attack.
Next, respondent counters that there is no merit to ABC's claim
that the Resolutions' definition of "political advertisement" or
"election propaganda" suffers from overbreadth, as the extent or
scope of what falls under said terms is clearly stated in Section 1
(4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total
airtime does not violate the equal protection clause, because it
does not make any substantial distinctions between national and
regional and/or local broadcast stations, and even without the
aggregate total airtime rule, candidates and parties are likely to
be more inclined to advertise in national broadcast stations.
Respondent likewise sees no merit in petitioners' claim that the
Resolutions amount to taking of private property without just
compensation. Respondent emphasizes that radio and television
broadcasting companies do not own the airwaves and
frequencies through which they transmit broadcast signals; they
are merely given the temporary privilege to use the same. Since
they are merely enjoying a privilege, the same may be reasonably
burdened with some form of public service, in this case, to
provide candidates with the opportunity to reply to charges aired
against them.
Lastly, respondent contends that the public consultation
requirement does not apply to constitutional commissions such as
the COMELEC, pursuant to Section 1, Chapter I, Book VII of the
Administrative Code of 1987. Indeed, Section 9, Chapter II, Book
VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise
required by law, an agency shall, as far as practicable,
publish or circulate notices of proposed rules and afford
interested parties the opportunity to submit their views
prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly
provides:
Section 1. Scope. -This Book shall be applicable to all
agencies as defined in the next succeeding section,
except the Congress, the Judiciary, the Constitutional
Commissions, military establishments in all matters
relating exclusively to Armed Forces personnel, the Board
of Pardons and Parole, and state universities and
colleges.
Nevertheless, even if public participation is not required,
respondent still conducted a meeting with representatives of the
KBP and various media outfits on December 26, 2012, almost a
month before the issuance of Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it
advanced the following counter-arguments:
According to GMA, a petition for certiorari is the proper remedy to
question the herein assailed Resolutions, which should be
considered as a "decision, order or ruling of the Commission" as
mentioned in Section 1, Rule 37 of the COMELEC Rules of
Procedure which provides:
Section 1. Petition for Certiorari,· and Time to File. - Unless
otherwise provided by law, or by any specific provisions in these
Rules, any decision, order or ruling of the Commission may be
brought to the Supreme Court on certiorari by the aggrieved party
within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and
the urgency of the matter justifies its resort to the remedy of a
petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the
proper remedy is a petition for declaratory relief because such
action only asks the court to make a proper interpretation of the
rights of parties under a statute or regulation. Such a petition
does not nullify the assailed statute or regulation, or grant
injunctive relief, which petitioners are praying for in their petition.
Thus, GMA maintains that a petition for certiorari is the proper
remedy.
GMA further denies that it is making a collateral attack on the Fair
Election Act, as it is not attacking said law. GMA points out that it
has stated in its petition that the law in fact allows the sale or
donation of airtime for political advertisements and does not
impose criminal liability against radio and television stations.
What it is assailing is the COMELEC's erroneous interpretation of
the law's provisions by declaring such sale and/or donation of
airtime unlawful, which is contrary to the purpose of the Fair
Election Act.
GMA then claims that it has legal standing to bring the present
suit because:
x x x First, it has personally suffered a threatened injury in the
form of risk of criminal liability because of the alleged
unconstitutional and unlawful conduct of respondent COMELEC
in expanding what was provided for in R.A. No. 9006. Second,
the injury is traceable to the challenged action of respondent
COMELEC, that is, the issuance of the assailed Resolutions.
Third, the injury is likely to be redressed by the remedy sought in
petitioner GMA's Petition, among others, for the Honorable Court
to nullify the challenged pertinent provisions of the assailed
Resolutions.15
On substantive issues, GMA first argues that the questioned
Resolutions are contrary to the objective and purpose of the Fair
Election Act. It points out that the Fair Election Act even repealed
the political ad ban found in the earlier law, R.A. No. 6646. The
Fair Election Act also speaks of "equal opportunity" and "equal
access,'' but said law never mentioned equalizing the economic
station of the rich and the poor, as a declared policy.
Furthermore, in its opinion, the supposed correlation between
candidates' expenditures for TV ads and actually winning the
elections, is a mere illusion, as there are other various factors
responsible for a candidate's winning the election. GMA then cites
portions of the deliberations of the Bicameral Conference
Committee on the bills that led to the enactment of the Fair
Election Act, and alleges that this shows the legislative intent that
airtime allocation should be on a "per station" basis. Thus, GMA
claims it was arbitrary and a grave abuse of discretion for the
COMELEC to issue the present Resolutions imposing airtime
limitations on an "aggregate total" basis.
It is likewise insisted by GMA that the assailed Resolutions
impose an unconstitutional burden on them, because their failure
to strictly monitor the duration of total airtime that each candidate
has purchased even from other stations would expose their
officials to criminal liability and risk losing the station's good
reputation and goodwill, as well as its franchise. It argues that the
wordings of the Resolutions belie the COMELEC's claim that
petitioners would only incur liability if they "knowingly" sell airtime
beyond the limits imposed by the Resolutions, because the
element of knowledge is clearly absent from the provisions
thereof. This makes the provisions have the nature of malum
prohibitum.
Next, GMA also says that the application of the aggregate airtime
limit constitutes prior restraint and is unconstitutional, opining that
"[t]he reviewing power of respondent COMELEC and its sole
judgment of a news event as a political advertisement are so
pervasive under the assailed Resolutions, and provoke the
distastes or chilling effect of prior restraint"16 as even a legitimate
exercise of a constitutional right might expose it to legal sanction.
Thus, the governmental interest of leveling the playing field
between rich and poor candidates cannot justify the restriction on
the freedoms of expression, speech and of the press.
On the issue of lack of prior public participation, GMA cites
Section 82 of the Omnibus Election Code, pertinent portions of
which provide, thus:
Section 82. Lawful election propaganda. - Lawful election
propaganda shall include:
xxxx
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.
There having been no prior public consultation held, GMA
contends that the COMELEC is guilty of depriving petitioners of
its right to due process of law.
GMA then concludes that it is also entitled to a temporary
restraining order, because the implementation of the Resolutions
in question will cause grave and irreparable damage to it by
disrupting and emasculating its mandate to provide television and
radio services to the public, and by exposing it to the risk of
incurring criminal and administrative liability by requiring it to
perform the impossible task of surveillance and monitoring, or the
broadcasts of other radio and television stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of
the Solicitor General (OSG), filed a Supplemental Comment and
Opposition17 where it further expounded on the legislative intent
behind the Fair Election Act, also quoting portions of the
deliberations of the Bicameral Conference Committee, allegedly
adopting the Senate Bill version setting the computation of airtime
limits on a per candidate, not per station, basis. Thus, as enacted
into law, the wordings of Section 6 of the Fair Election Act shows
that the airtime limit is imposed on a per candidate basis, rather
than on a per station basis. Furthermore, the COMELEC states
that petitioner intervenor Senator Cayetano is wrong in arguing
that there should be empirical data to support the need to change
the computation of airtime limits from a per station basis to a per
candidate basis, because nothing in law obligates the COMELEC
to support its Resolutions with empirical data, as said airtime limit
was a policy decision dictated by the legislature itself, which had
the necessary empirical and other data upon which to base said
policy decision.
The COMELEC then points out that Section 2 (7),18 Article IX (C)
of the Constitution empowers it to recommend to Congress
effective measures to minimize election spending and in
furtherance of such constitutional power, the COMELEC issued
the questioned Resolutions, in faithful implementation of the
legislative intent and objectives of the Fair Election Act.
The COMELEC also dismisses Senator Cayetano's fears that
unauthorized or inadvertent inclusion of his name, initial, image,
brand, logo, insignia and/or symbol in tandem advertisements will
be charged against his airtime limits by pointing out that what will
be counted against a candidate's airtime and expenditures are
those advertisements that have been paid for or donated to them
to which the candidate has given consent.
With regard to the attack that the total aggregate airtime limit
constitutes prior restraint or undue abridgement of the freedom of
speech and expression, the COMELEC counters that "the
Resolutions enjoy constitutional and congressional imprimatur. It
is the Constitution itself that imposes the restriction on the
freedoms of speech and expression, during election period, to
promote an important and significant governmental interest,
which is to equalize, as far as practicable, the situation of rich and
poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign 'war chests."'19
Lastly, the COMELEC also emphasizes that there is no
impairment of the people's right to information on matters of
public concern, because in this case, the COMELEC is not
withholding access to any public record.
On April 16, 2013, this Court issued a Temporary Restraining
Order20 (TRO) in view of the urgency involved and to prevent
irreparable injury that may be caused to the petitioners if
respondent COMELEC is not enjoined from implementing
Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift
Temporary Restraining Order and Motion for Early Resolution of
the Consolidated Petitions.21
On May 8, 2013, petitioners ABS-CBN and the KBP filed its
Opposition/Comment22 to the said Motion. Not long after, ABC
followed suit and filed its own Opposition to the Motion23 filed by
the respondent.
In the interim, respondent filed a Second Supplemental Comment
and Opposition24 dated April 8, 2013.
In the Second Supplemental Comment and Opposition,
respondent delved on points which were not previously discussed
in its earlier Comment and Supplemental Comment, particularly
those raised in the petition filed by petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to
question the Constitutionality of the assailed Resolutions and that
petitioners ABS-CBN and KBP have no locus standi to file the
present petition.
Respondent posits that contrary to the contention of petitioners,
the legislative history of R.A. No. 9006 conclusively shows that
congress intended the airtime limits to be computed on a "per
candidate" and not on a "per station" basis. In addition, the legal
duty of monitoring lies with the COMELEC. Broadcast stations
are merely required to submit certain documents to aid the
COMELEC in ensuring that candidates are not sold airtime in
excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice
requirement is a mechanism designed to inform the COMELEC of
the appearances or guesting of candidates in bona fide news
broadcasts. It is for monitoring purposes only, not censorship. It
does not control the subject matter of news broadcasts in
anyway. Neither does it prevent media outlets from covering
candidates in news interviews, news events, and news
documentaries, nor prevent the candidates from appearing
thereon.
As for the right to reply, respondent insists that the right to reply
provision cannot be considered a prior restraint on the freedoms
of expression, speech and the press, as it does not in any way
restrict the airing of bona fide new broadcasts. Media entities are
free to report any news event, even if it should turn out to be
unfavourable to a candidate or party. The assailed Resolutions
merely give the candidate or party the right to reply to such
charges published or aired against them in news broadcasts.
Moreover, respondent contends that the imposition of the penalty
of suspension and revocation of franchise or permit for the sale or
donation of airtime beyond the allowable limits is sanctioned by
the Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4,
2013, the Court issued a Resolution25 consolidating the case with
the rest of the petitions and requiring respondent to comment
thereon.
On October 10, 2013, respondent filed its Third Supplemental
Comment and Opposition.26 Therein, respondent stated that the
petition filed by RMN repeats the issues that were raised in the
previous petitions. Respondent, likewise, reiterated its arguments
that certiorari in not the proper remedy to question the assailed
resolutions and that RMN has no locus standi to file the present
petition. Respondent maintains that the arguments raised by
RMN, like those raised by the other petitioners are without merit
and that RMN is not entitled to the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present petit10ns are
Resolutions promulgated by the COMELEC relative to the
conduct of the 2013 national and local elections, nevertheless the
issues raised by the petitioners have not been rendered moot and
academic by the conclusion of the 2013 elections. Considering
that the matters elevated to the Court for resolution are
susceptible to repetition in the conduct of future electoral
exercises, these issues will be resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat
when issues of substantial and transcendental importance are
presented before the Court. So the Court does again in this
particular case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the
proper remedies that petitioners have taken to question the
assailed Resolutions of the COMELEC. Technically, respondent
may have a point. However, considering the very important and
pivotal issues raised, and the limited time, such technicality
should not deter the Court from having to make the final and
definitive pronouncement that everyone else depends for
enlightenment and guidance. "[T]his Court has in the past seen fit
to step in and resolve petitions despite their being the subject of
an improper remedy, in view of the public importance of the tile
issues raised therein.27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the Court, the
issue of locus standi is raised to question the personality of the
parties invoking the Court's jurisdiction. The Court has routinely
made reference to a liberalized stance when it comes to petitions
raising issues of transcendental importance to the country.
Invariably, after some discussions, the Court would eventually
grant standing.28
In this particular case, respondent also questions the standing of
the petitioners. We rule for the petitioners. For petitioner-
intervenor Senator Cayetano, he undoubtedly has standing since
he is a candidate whose ability to reach out to the electorate is
impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in
view of the direct injury they may suffer relative to their ability to
carry out their tasks of disseminating information because of the
burdens imposed on them. Nevertheless, even in regard to the
broadcast companies invoking the injury that may be caused to
their customers or the public - those who buy advertisements and
the people who rely on their broadcasts - what the Court said in
White Light Corporation v. City of Manila29 may dispose of the
question. In that case, there was an issue as to whether owners
of establishments offering "wash-up" rates may have the requisite
standing on behalf of their patrons' equal protection claims
relative to an ordinance of the City of Manila which prohibited
"short-time" or "wash-up" accommodation in motels and similar
establishments. The Court essentially condensed the issue in this
manner: "[T]he crux of the matter is whether or not these
establishments have the requisite standing to plead for protection
of their patrons' equal protection rights."30 The Court then went on
to hold:
Standing or locus standi is the ability of a party to demonstrate to
the court sufficient connection to and harm from the law or action
challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of
separation of powers, sparing as it does unnecessary
interference or invalidation by the judicial branch of the actions
rendered by its co-equal branches of government.
The requirement of standing is a core component of the judicial
system derived directly from the Constitution. The constitutional
component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. In this
jurisdiction, the extancy of "a direct and personal interest"
presents the most obvious cause, as well as the standard test for
a petitioner's standing. In a similar vein, the United States
Supreme Court reviewed and elaborated on the meaning of the
three constitutional standing requirements of injury, causation,
and redressability in Allen v. Wright.
Nonetheless, the general rules on standing admit of several
exceptions such as the overbreadth doctrine, taxpayer suits, third
party standing and, especially in the Philippines, the doctrine of
transcendental importance.
For this particular set of facts, the concept of third party standing
as an exception and the overbreadth doctrine are appropriate. x x
x
xxxx
American jurisprudence is replete with examples where parties-
ininterest were allowed standing to advocate or invoke the
fundamental due process or equal protection claims of other
persons or classes of persons injured by state action. x x x
xxxx
Assuming arguendo that petitioners do not have a relationship
with their patrons for the former to assert the rights of the latter,
the overbreadth doctrine comes into play. In overbreadth
analysis, challengers to government action are in effect permitted
to raise the rights of third parties. Generally applied to statutes
infringing on the freedom of speech, the overbreadth doctrine
applies when a statute needlessly restrains even constitutionally
guaranteed rights. In this case, the petitioners claim that the
Ordinance makes a sweeping intrusion into the right to liberty of
their clients. We can see that based on the allegations in the
petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the
constitutional rights of their clients to patronize their
establishments for a "wash-rate" time frame.31
If in regard to commercial undertakings, the owners may have the
right to assert a constitutional right of their clients, with more
reason should establishments which publish and broadcast have
the standing to assert the constitutional freedom of speech of
candidates and of the right to information of the public, not to
speak of their own freedom of the press. So, we uphold the
standing of petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure
from the previous COMELEC resolutions relative to the airtime
limitations on political advertisements. This essentially consists in
computing the airtime on an aggregate basis involving all the
media of broadcast communications compared to the past where
it was done on a per station basis. Thus, it becomes immediately
obvious that there was effected a drastic reduction of the
allowable minutes within which candidates and political parties
would be able to campaign through the air. The question is
accordingly whether this is within the power of the COMELEC to
do or not. The Court holds that it is not within the power of the
COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly
flows from the Fair Election Act (R.A. No. 9006 [2001])32 - one
hundred (120) minutes of television advertisement and one-
hundred· eighty (180) minutes for radio advertisement. For the
2004 elections, the respondent COMELEC promulgated
Resolution No. 652033 implementing the airtime limits by applying
said limitation on a per station basis.34 Such manner of
determining airtime limits was likewise adopted for the 2007
elections, through Resolution No. 7767.35 In the 2010 elections,
under Resolution No. 8758,36 the same was again adopted. But
for the 2013 elections, the COMELEC, through Resolution No.
9615, as amended by Resolution No. 9631, chose to aggregate
the total broadcast time among the different broadcast media,
thus: Section 9. Requirements and/or Limitations on the Use of
Election Propaganda through Mass Media. - All parties and bona
fide candidates shall have equal access to media time and space
for their election propaganda during the campaign period subject
to the following requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for
their broadcast advertisements or election propaganda shall be,
as follows:
For Candidates/Registered Not more than an aggregate total of one
Political parties for a National hundred (120) minutes of television
Elective Position advertising, whether appearing on national
regional, or local, free or cable television, a
one hundred eighty (180) minutes of radio
advertising, whether airing on national,
regional, or local radio, whether by purchas
donation
For Candidates/Registered Not more than an aggregate total of sixty (6
Political parties for a Local minutes of television advertising, whether
Elective Position appearing on national, regional, or local, fre
or cable television, and ninety (90) minutes
radio advertising, whether airing on nationa
regional, or local radio, whether by purchas
donation.
In cases where two or more candidates or parties whose names,
initials, images, brands, logos, insignias, color motifs, symbols, or
forms of graphical representations are displayed, exhibited, used,
or mentioned together in the broadcast election propaganda or
advertisements, the length of time during which they appear or
are being mentioned or promoted will be counted against the
airtime limits allotted for the said candidates or parties and the
cost of the said advertisement will likewise be considered as their
expenditures, regardless of whoever paid for the advertisements
or to whom the said advertisements were donated.
x x x x37
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006
was undertaken by respondent Comelec without consultation with
the candidates for the 2013 elections, affected parties such as
media organizations, as well as the general public. Worse, said
change was put into effect without explaining the basis therefor
and without showing any data in support of such change.
Respondent Comelec merely maintained that such action "is
meant to level the playing field between the moneyed candidates
and those who don i have enough resources," without
particularizing the empirical data upon which such a sweeping
statement was based. This was evident in the public hearing held
on 31 January 2013 where petitioner GMA, thru counsel,
explained that no empirical data on he excesses or abuses of
broadcast media were brought to the attention of the public by
respondent Comelec, or even stated in the Comelec
Resolution No. 9615. Thus –
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we
can expand if we want to. But the authority of the Commission is
if we do not want to amplify and we think that the 120 or 180 is
okay we cannot be compelled to amplify. We think that 120 or
180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the
resolution is found in the law and the law has been enterpreted
(sic) before in 2010 to be 120 per station, so why the change,
your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the
Commission on Elections. Nobody can encroach in our right to
amplify. Now, if in 2010 the Commission felt that per station or
per network is the rule then that is the prerogative of the
Commission then they could amplify it to expand it. If the current
Commission feels that 120 is enough for the particular medium
like TV and 180 for radio, that is our prerogative. How can you
encroach and what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable
Commission to regulate Your Honor, we are just raising our
concern on the manner of regulation because as it is right now,
there is a changing mode or sentiments of the Commission and
the public has the right to know, was there rampant overspending
on political ads in 2010, we were not informed Your Honor. Was
there abuse of the media in 2010, we were not informed Your
Honor. So we would like to know what is the basis of the sudden
change in this limitation, Your Honor .. And law must have a
consistent interpretation that [is]our position, Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation
counsel, is that if the Constitution allows us to regulate and then it
gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission. Which
means if previous Commissions felt that expanding it should be
part of our authority that was a valid exercise if we reduce it to
what is provided for by law which is 120-180 per medium, TV,
radio, that is also within the law and that is still within our
prerogative as provided for by the Constitution. If you say we
have to expose the candidates to the public then I think the
reaction should come, the negative reaction should come from
the candidates not from the media, unless you have some
interest to protect directly. Is there any interest on the part of the
media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your
Honor and we have been constantly (sic) as the resolution says
and even in the part involved because you will be getting some
affirmative action time coming from the media itself and Comelec
time coming from the media itself. So we could like to be both
involved in the whole process of the exercise of the freedom of
suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well
as the provision of 9006 is actually to level the playing field. That
should be the paramount consideration. If we allow everybody to
make use of all their time and all radio time and TV time then
there will be practically unlimited use of the mass media ....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support
that there was an unlimited and abuse of a (sic) political ads in
the mass media that became the basis of this change in
interpretation Your Honor? We would like to know about it Your
Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage
given to those who took ... who had the more moneyed
candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates,
there are rich candidates. No amount of law or regulation can
even level the playing filed (sic) as far as the economic station in
life of the candidates are concern (sic) our Honor.38
Given the foregoing observations about what happened during
the hearing, Petitioner-Intervenor went on to allege that:
6.16. Without any empirical data upon which to base the
regulatory measures in Section 9 (a), respondent Comelec
arbitrarily changed the rule from per station basis to aggregate
airtime basis. Indeed, no credence should be given to the cliched
explanation of respondent Comelec (i.e. leveling the playing field)
in its published statements which in itself is a mere reiteration of
the rationale for the enactment of the political ad ban of Republic
Act No. 6646, and which has likewise been foisted when said
political ad ban was lifted by R.A. 9006.39
From the foregoing, it does appear that the COMELEC did not
have any other basis for coming up with a new manner of
determining allowable time limits except its own idea as to what
should be the maximum number of minutes based on its exercise
of discretion as to how to level the playing field. The same could
be encapsulized in the remark of the COMELEC Chairman that "if
the Constitution allows us to regulate and then it gives us the
prerogative to amplify then the prerogative to amplify you should
leave this to the discretion of the Commission."40
The Court could not agree with what appears as a nonchalant
exercise of discretion, as expounded anon.
b. COMELEC is duty bound to come up with reasonable basis for
changing the interpretation and implementation of the airtime
limits
There is no question that the COMELEC is the office
constitutionally and statutorily authorized to enforce election laws
but it cannot exercise its powers without limitations - or
reasonable basis. It could not simply adopt measures or
regulations just because it feels that it is the right thing to do, in
so far as it might be concerned. It does have discretion, but such
discretion is something that must be exercised within the bounds
and intent of the law. The COMELEC is not free to simply change
the rules especially if it has consistently interpreted a legal
provision in a particular manner in the past. If ever it has to
change the rules, the same must be properly explained with
sufficient basis.
Based on the transcripts of the hearing conducted by the
COMELEC after it had already promulgated the Resolution, the
respondent did not fully explain or justify the change in computing
the airtime allowed candidates and political parties, except to
make reference to the need to "level the playing field." If the "per
station" basis was deemed enough to comply with that objective
in the past, why should it now be suddenly inadequate? And, the
short answer to that from the respondent, in a manner which
smacks of overbearing exercise of discretion, is that it is within
the discretion of the COMELEC. As quoted in the transcript, "the
right to amplify is with the COMELEC. Nobody can encroach in
our right to amplify. Now, if in 2010 the Commission felt that per
station or per network is the rule then that is the prerogative of the
Commission then they could amplify it to expand it. If the current
Commission feels that 120 is enough for the particular medium
like TV and 180 for radio, that is our prerogative. How can you
encroach and what is unconstitutional about it?"41
There is something basically wrong with that manner of
explaining changes in administrative rules. For one, it does not
really provide a good basis for change. For another, those
affected by such rules must be given a better explanation why the
previous rules are no longer good enough. As the Court has said
in one case:
While stability in the law, particularly in the business field, is
desirable, there is no demand that the NTC slavishly follow
precedent. However, we think it essential, for the sake of clarity
and intellectual honesty, that if an administrative agency decides
inconsistently with previous action, that it explain thoroughly why
a different result is warranted, or ?f need be, why the previous
standards should no longer apply or should be overturned. Such
explanation is warranted in order to sufficiently establish a
decision as having rational basis. Any inconsistent decision
lacking thorough, ratiocination in support may be struck down as
being arbitrary. And any decision with absolutely nothing to
support it is a nullity.42
What the COMELEC came up with does not measure up to that
level of requirement and accountability which elevates
administrative rules to the level of respectability and acceptability.
Those governed by administrative regulations are entitled to a
reasonable and rational basis for any changes in those rules by
which they are supposed to live by, especially if there is a radical
departure from the previous ones.
c. The COMELEC went beyond the authority granted it by the law
in adopting "aggregate" basis in the determination of allowable
airtime
The law, which is the basis of the regulation subject of these
petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a
nationally elective office shall be entitled to not more than one
hundred twenty (120) minutes of television advertisement and
one hundred eighty (180) minutes of radio advertisement whether
by purchase or donation.
(b) Each bona fide candidate or registered political party for a
locally elective office shall be entitled to not more than sixty (60)
minutes of television advertisement and ninety (90) minutes of
radio advertisement whether by purchase or donation; x x x
The law, on its face, does not justify a conclusion that the
maximum allowable airtime should be based on the totality of
possible broadcast in all television or radio stations. Senator
Cayetano has called our attention to the legislative intent relative
to the airtime allowed - that it should be on a "per station" basis.43
This is further buttressed by the fact that the Fair Election Act
(R.A. No. 9006) actually repealed the previous provision, Section
ll(b) of Republic Act No. 6646,44 which prohibited direct political
advertisements -the so-called "political ad ban." If under the
previous law, no candidate was allowed to directly buy or procure
on his own his broadcast or print campaign advertisements, and
that he must get it through the COMELEC Time or COMELEC
Space, R.A. No. 9006 relieved him or her from that restriction and
allowed him or her to broadcast time or print space subject to the
limitations set out in the law. Congress, in enacting R.A. No.
9006, felt that the previous law was not an effective and efficient
way of giving voice to the people. Noting the debilitating effects of
the previous law on the right of suffrage and Philippine
democracy, Congress decided to repeal such rule by enacting the
Fair Election Act.
In regard to the enactment of the new law, taken in the context of
the restrictive nature of the previous law, the sponsorship speech
of Senator Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code
and Sections 10 and 11 of RA 6646. In view of the importance of
their appeal in connection with the thrusts of the bill, I hereby
quote these sections in full:
"SEC. 85. Prohibited forms of election propaganda. - It shall be
unlawful:
"(a) To print, publish, post or distribute any poster,
pamphlet, circular, handbill, or printed matter
urging voters to vote for or against any candidate
unless they hear the names and addresses of the
printed and payor as required in Section 84
hereof;
"(b) To erect, put up, make use of, attach, float or
display any billboard, tinplate-poster, balloons and
the like, of whatever size, shape, form or kind,
advertising for or against any candidate or political
party;
"(c) To purchase, manufacture, request, distribute
or accept electoral propaganda gadgets, such as
pens, lighters, fans of whatever nature, flashlights,
athletic goods or materials, wallets, shirts, hats,
 bandannas, matches, cigarettes and the like,
except that campaign supporters accompanying a
candidate shall be allowed to wear hats and/or
shirts or T-shirts advertising a candidate;
"(d) To show or display publicly any advertisement
or propaganda for or against any candidate by
means of cinematography, audio-visual units or
other screen projections except telecasts which
may be allowed as hereinafter provided; and
"(e) For any radio broadcasting or television
station to sell or give free of charge airtime for
campaign and other political purposes except as
authorized in this Code under the rules and
regulations promulgated by the Commission
pursuant thereto;
"Any prohibited election propaganda gadget or advertisement
shall be stopped, confiscated or tom down by the representative
of the Commission upon specific authority of the Commission."
"SEC. 10. Common Poster Areas. - The Commission shall
designate common poster areas in strategic public places such
as markets, barangay centers and the like wherein candidates
can post, display or exhibit election propaganda to announce or
further their candidacy.
"Whenever feasible, common billboards may be installed by the
Commission and/or non-partisan private or civic organizations
which the Commission may authorize whenever available, after
due notice and hearing, in strategic areas where it may readily be
seen or read, with the heaviest pedestrian and/or vehicular traffic
in the city or municipality.
The space in such common poster areas or billboards shall be
allocated free of charge, if feasible, equitably and impartially
among the candidates in the province, city or municipality. "SEC.
11. Prohibite,d 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 puolicly exhibit any election
propaganda in any place, whether private or public, except in
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) feet and not exceeding
three (3) feet by eight (8) 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; and
"(b) For any newspapers, radio broadcasting or television station,
or other mass media, or any person making use of the mass
media to sell or give for free of charge print space or air time for
campaign or other political purposes except to the Commission
as provided under Section 90 and 92 of Batas Pambansa Big.
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."
The repeal of the provision on the Common Poster Area
implements the strong recommendations of the Commission on
Elections during the hearings. It also seeks to apply the doctrine
enunciated by the Supreme Court in the case of Blo Umpar
Adiong vs. Commission on Elections, 207 SCRA 712, 31 March
1992. Here a unanimous Supreme Court ruled: The COMELEC's
prohibition on the 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.
For the foregoing reasons, we commend to our colleagues the
early passage of Senate Bill No. 1742. In so doing, we move one
step towards further ensuring "free, orderly, honest, peaceful and
credible elections" as mandated by the Constitution.45
Given the foregoing background, it is therefore ineluctable to
conclude that Congress intended to provide a more expansive
and liberal means by which the candidates, political parties,
citizens and other stake holders in the periodic electoral exercise
may be given a chance to fully explain and expound on their
candidacies and platforms of governance, and for the electorate
to be given a chance to know better the personalities behind the
candidates. In this regard, the media is also given a very
important part in that undertaking of providing the means by
which the political exercise becomes an interactive process. All of
these would be undermined and frustrated with the kind of
regulation that the respondent came up with.
The respondent gave its own understanding of the import of the
legislative deliberations on the adoption of R.A. No. 9006 as
follows:
The legislative history of R.A. 9006 clearly shows that Congress
intended to impose the per candidate or political party aggregate
total airtime limits on political advertisements and election
propaganda. This is evidenced by the dropping of the "per day
per station" language embodied in both versions of the House of
Representatives and Senate bills in favour of the "each
candidate" and "not more than" limitations now found in Section 6
of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No.
1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read
as follows:
Sec. 86. Regulation of Election Propaganda Through Mass
Media.
xxx xxx xxx
A) The total airtime available to the candidate and political party,
whether by purchase or by donation, shall be limited to five (5)
minutes per day in each television, cable television and radio
stations during the applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. -All registered
parties and bona fide candidates shall have equal access to
media space and time. The following guidelines may be amplified
by the COMELEC.
xxx xxx xxx
2. The total airtime available for each registered party and bona
fide candidate whether by purchase or donation shall not exceed
a total of one (1) minute per day per television or radio station.
(Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly
seen that the legislature intended the aggregate airtime limits to
be computed on per candidate or party basis. Otherwise, if the
legislature intended the computation to be on per station basis, it
could have left the original "per day per station" formulation.46
The Court does not agree. It cannot bring itself to read the
changes in the bill as disclosing an intent that the COMELEC
wants this Court to put on the final language of the law. If
anything, the change in language meant that the computation
must not be based on a "per day" basis for each television or
radio station. The same could not therefore lend itself to an
understanding that the total allowable time is to be done on an
aggregate basis for all television or radio stations. Clearly, the
respondent in this instance went beyond its legal mandate when it
provided for rules beyond what was contemplated by the law it is
supposed to implement. As we held in Lakin, Jr. v. Commission
on Elections:47
The COMELEC, despite its role as the implementing arm of the
Government in the enforcement and administration of all laws and
regulations relative to the conduct of an election, has neither the
authority nor the license to expand, extend, or add anything to the
law it seeks to implement thereby. The IRRs the COMELEC
issued for that purpose should always be in accord with the law to
be implemented, and should not override, supplant, or modify the
law. It is basic that the IRRs should remain consistent with the
law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department
of the Government under legislative authority must be in harmony
with the provisions of the law, and should be for the sole purpose
of carrying the law's general provisions into effect. The law itself
cannot be expanded by such IRRs, because an administrative
agency cannot amend an act of Congress.48
In the case of Lakin, Jr., the COMELEC's explanation that the
Resolution then in question did not add anything but merely
reworded and rephrased the statutory provision did not persuade
the Court. With more reason here since the COMELEC not only
reworded or rephrased the statutory provision - it practically
replaced it with its own idea of what the law should be, a matter
that certainly is not within its authority. As the Court said in
Villegas v. Subido:49
One last word. Nothing is better settled in the law than that a
public official exercises power, not rights. The government itself is
merely an agency through which the will of the state is expressed
and enforced. Its officers therefore are likewise agents entrusted
with the responsibility of discharging its functions. As such there
is no presumption that they are empowered to act. There must be
a delegation of such authority, either express or implied. In the
absence of a valid grant, they are devoid of power. What they do
suffers from a fatal infirmity. That principle cannot be sufficiently
stressed. In the appropriate language of Chief Justice Hughes: "It
must be conceded that departmental zeal may not be permitted to
outrun the authority conferred by statute." Neither the high dignity
of the office nor the righteousness of the motive then is an
acceptable substitute. Otherwise the rule of law becomes a myth.
Such an eventuality, we must take all pains to avoid.50
So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime
limits also goes against the constitutional guaranty of freedom of
expression, of speech and of the press
The guaranty of freedom to speak is useless without the ability to
communicate and disseminate what is said. And where there is a
need to reach a large audience, the need to access the means
and media for such dissemination becomes critical. This is where
the press and broadcast media come along. At the same time,
the right to speak and to reach out would not be meaningful if it is
just a token ability to be heard by a few. It must be coupled with
substantially reasonable means by which the communicator and
the audience could effectively interact. Section 9 (a) of
COMELEC Resolution No. 9615, with its adoption of the
"aggregate-based" airtime limits unreasonably restricts the
guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions
protected by the Fundamental Law. "[F]reedom of speech, of
expression, and of the press are at the core of civil liberties and
have to be protected at all costs for the sake of
democracy."51 Accordingly, the same must remain unfettered
unless otherwise justified by a compelling state interest.
In regard to limitations on political speech relative to other state
interests, an American case observed:
A restriction on the amount of money a person or group can
spend on political communication during a campaign necessarily
reduces the quantity of expression by restricting the number of
issues discussed, the depth of their exploration, and the size of
the audience reached. This is because virtually every means of
communicating ideas in today's mass society requires the
expenditure of money. The distribution of the humblest handbill or
leaflet entails printing, paper, and circulation costs. Speeches and
rallies generally necessitate hiring a hall and publicizing the
event. The electorate's increasing dependence on television,
radio, and other mass media for news and information has made
these expensive modes of communication indispensable
instruments of effective political speech.
The expenditure limitations contained in the Act represent
substantial, rather than merely theoretical restraints on the
quantity and diversity of political speech. The $1,000 ceiling on
spending "relative to a clearly identified candidate," 18 U.S.C. §
608(e)(l) (1970 ed., Supp. IV), would appear to exclude all
citizens and groups except candidates, political parties, and the
institutional press from any significant use of the most effective
modes of communication. Although the Act's limitations on
expenditures by campaign organizations and political parties
provide substantially greater room for discussion and debate,
they would have required restrictions in the scope of a number of
past congressional and Presidential campaigns and would
operate to constrain campaigning by candidates who raise sums
in excess of the spending ceiling.52
Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with
what is challenged as being an unreasonable basis for
determining the allowable air time that candidates and political
parties may avail of. Petitioner GMA came up with its analysis of
the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime minutes
in the New Rules, petitioner GMA estimates that a
national candidate will only have 120 minutes to utilize for
his political advertisements in television during the whole
campaign period of 88 days, or will only have 81.81
seconds per day TV exposure allotment. If he chooses to
place his political advertisements in the 3 major TV
networks in equal allocation, he will only have 27.27
seconds of airtime per network per day. This barely
translates to 1 advertisement spot on a 30-second spot
basis in television.
5.9. With a 20-hour programming per day and considering
the limits of a station's coverage, it will be difficult for 1
advertising spot to make a sensible and feasible
communication to the public, or in political propaganda, to
"make known [a candidate's] qualifications and stand on
public issues".
5.10 If a candidate loads all of his 81.81 seconds per day
in one network, this will translate to barely three 30-
second advertising spots in television on a daily basis
using the same assumptions above.
5.11 Based on the data from the 2012 Nielsen TV
audience measurement in Mega Manila, the commercial
advertisements in television are viewed by only 39.2% of
the average total day household audience if such
advertisements are placed with petitioner GMA, the
leading television network nationwide and in Mega
Manila. In effect, under the restrictive aggregate airtime
limits in the New Rules, the three 30-second political
advertisements of a candidate in petitioner GMA will only
be communicated to barely 40% of the viewing audience,
not even the voting population, but only in Mega Manila,
which is defined by AGB Nielsen Philippines to cover
Metro Manila and certain urban areas in the provinces of
Bulacan, Cavite, Laguna, Rizal, Batangas and
 Pampanga. Consequently, given the voting population
distribution and the drastically reduced supply of airtime
as a result of the New Rules' aggregate airtime limits, a
national candidate will be forced to use all of his airtime
for political advertisements in television only in urban
areas such as Mega Manila as a political campaign tool to
achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila or
other urban areas deserve to be informed of the
candidates in the national elections, and the said
candidates also enjoy the right to be voted upon by these
informed populace.53
The Court agrees. The assailed rule on "aggregate-based" airtime
limits is unreasonable and arbitrary as it unduly restricts and
constrains the ability of candidates and political parties to reach
out and communicate with the people. Here, the adverted reason
for imposing the "aggregate-based" airtime limits - leveling the
playing field - does not constitute a compelling state interest
which would justify such a substantial restriction on the freedom
of candidates and political parties to communicate their ideas,
philosophies, platforms and programs of government. And, this is
specially so in the absence of a clear-cut basis for the imposition
of such a prohibitive measure. In this particular instance, what the
COMELEC has done is analogous to letting a bird fly after one
has clipped its wings.
It is also particularly unreasonable and whimsical to adopt the
aggregate-based time limits on broadcast time when we consider
that the Philippines is not only composed of so many islands.
There are also a lot of languages and dialects spoken among the
citizens across the country. Accordingly, for a national candidate
to really reach out to as many of the electorates as possible, then
it might also be necessary that he conveys his message through
his advertisements in languages and dialects that the people may
more readily understand and relate to. To add all of these
airtimes in different dialects would greatly hamper the ability of
such candidate to express himself - a form of suppression of his
political speech.
Respondent itself states that "[t]elevision is arguably the most
costeffective medium of dissemination. Even a slight increase in
television exposure can significantly boost a candidate's
popularity, name recall and electability."54 If that be so, then
drastically curtailing the ability of a candidate to effectively reach
out to the electorate would unjustifiably curtail his freedom to
speak as a means of connecting with the people.
Finally on this matter, it is pertinent to quote what Justice Black
wrote in his concurring opinion in the landmark Pentagon Papers
case: "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."55
In the ultimate analysis, when the press is silenced, or otherwise
muffled in its undertaking of acting as a sounding board, the
people ultimately would be the victims.
e. Section 9 (a) of Resolution 9615 is violative of the people's
right to suffrage
Fundamental to the idea of a democratic and republican state is
the right of the people to determine their own destiny through the
choice of leaders they may have in government. Thus, the
primordial importance of suffrage and the concomitant right of the
people to be adequately informed for the intelligent exercise of
such birthright. It was said that:
x x x As long as popular government is an end to be achieved
and safeguarded, suffrage, whatever may be the modality and
form devised, must continue to be the means by which the great
reservoir of power must be emptied into the receptacular
agencies wrought by the people through their Constitution in the
interest of good government and the common weal.
Republicanism, in so far as it implies the adoption of a
representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as
the ultimate source of the established authority. He has a voice in
his Government and whenever possible it is the solemn duty of
the judiciary, when called upon to act in justifiable cases, to give it
efficacy and not to stifle or frustrate it. This, fundamentally, is the
reason for the rule that ballots should be read and appreciated, if
not with utmost, with reasonable, liberality. x x x56 It has also been
said that "[ c ]ompetition in ideas and governmental policies is at
the core of our electoral process and of the First Amendment
freedoms."57 Candidates and political parties need adequate
breathing space - including the means to disseminate their ideas.
This could not be reasonably addressed by the very restrictive
manner by which the respondent implemented the time limits in
regard to political advertisements in the broadcast media.
f. Resolution No. 9615 needs prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15,
2013 then came up with a public hearing on January 31, 2013 to
explain what it had done, particularly on the aggregate-based air
time limits. This circumstance also renders the new regulation,
particularly on the adoption of the aggregate-based airtime limit,
questionable. It must not be overlooked that the new Resolution
introduced a radical change in the manner in which the rules on
airtime for political advertisements are to be reckoned. As such
there is a need for adequate and effective means by which they
may be adopted, disseminated and implemented. In this regard, it
is not enough that they be published - or explained - after they
have been adopted.
While it is true that the COMELEC is an independent office and
not a mere administrative agency under the Executive
Department, rules which apply to the latter must also be deemed
to similarly apply to the former, not as a matter of administrative
convenience but as a dictate of due process. And this assumes
greater significance considering the important and pivotal role
that the COMELEC plays in the life of the nation. Thus, whatever
might have been said in Commissioner of Internal Revenue v.
Court of Appeals,58 should also apply mutatis mutandis to the
COMELEC when it comes to promulgating rules and regulations
which adversely affect, or impose a heavy and substantial burden
on, the citizenry in a matter that implicates the very nature of
government we have adopted:
It should be understandable that when an administrative rule is
merely interpretative in nature, its applicability needs nothing
further than its bare issuance for it gives no real consequence
more than what the law itself has already prescribed. When, upon
the other hand, the administrative rule goes beyond merely
providing for the means that can facilitate or render least
cumbersome the implementation of the law but substantially adds
to or increases the burden of those governed, it behooves the
agency to accord at least to those directly affected a chance to be
heard, and thereafter to be duly informed, before that new
issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering the
circumstances under which it has been issued, convinces us that
the circular cannot be viewed simply as a corrective measure
(revoking in the process the previous holdings of past
Commissioners) or merely as construing Section 142(c)(l) of the
NIRC, as amended, but has, in fact and most importantly, been
made in order to place "Hope Luxury," "Premium More" and
"Champion" within the classification of locally manufactured
cigarettes bearing foreign brands and to thereby have them
covered by RA 7654. Specifically, the new law would have its
amendatory provisions applied to locally manufactured cigarettes
which at the time of its effectivity were not so classified as bearing
foreign brands. x x x In so doing, the BIR not simply interpreted
the law; verily, it legislated under its quasi-legislative authority.
The due observance of the requirements of notice, of hearing,
and of publication should not have been then ignored.59
For failing to conduct prior hearing before coming up with
Resolution No. 9615, said Resolution, specifically in regard to the
new rule on aggregate airtime is declared defective and
ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden
on the broadcast industry
It is a basic postulate of due process, specifically in relation to its
substantive component, that any governmental rule or regulation
must be reasonable in its operations and its impositions. Any
restrictions, as well as sanctions, must be reasonably related to
the purpose or objective of the government in a manner that
would not work unnecessary and unjustifiable burdens on the
citizenry. Petitioner GMA assails certain requirements imposed
on broadcast stations as unreasonable. It explained:
5.40 Petitioner GMA currently operates and monitors 21
FM and AM radio stations nationwide and 8 originating
television stations (including its main transmitter in
Quezon City) which are authorized to dechain national
programs for airing and insertion of local content and
advertisements.
5.41 In light of the New Rules wherein a candidate's
airtime minutes are applied on an aggregate basis and
considering that said Rules declare it unlawful in Section
7( d) thereof for a radio, television station or other mass
media to sell or give for free airtime to a candidate in
excess of that allowed by law or by said New Rules:
"Section 7. Prohibited Forms of Election Propaganda -
During the campaign period, it is unlawful: x x x x x x x x x
(d) for any newspaper or publication, radio, television or
cable 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
election propaganda purposes to any candidate or party
in excess of the size, duration or frequency authorized by
law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with the New
Rules in order to avoid administrative or criminal liability
would be unfair, cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall
be shared by all television and radio stations, broadcast
mass media organizations would surely encounter
insurmountable difficulties in monitoring the airtime
minutes spent by the numerous candidates for various
elective positions, in real time.
5.44 An inquiry with the National Telecommunications
Commission (NTC) bears out that there are 372 television
stations and 398 AM and 800 FM radio stations
nationwide as of June 2012. In addition, there are 1, 113
cable TV providers authorized by the NTC to operate
within the country as of the said date.
5.45 Given such numbers of broadcast entities and the
necessity to monitor political advertisements pursuant to
the New Rules, petitioner OMA estimates that monitoring
television broadcasts of all authorized television station
would involve 7,440 manhours per day. To aggravate
matters, since a candidate may also spend his/her
broadcasting minutes on cable TV, additional 281,040
manhours per day would have to be spent in monitoring
the various channels carried by cable TV throughout the
Philippines. As far as radio broadcasts (both AM and FM
stations) are concerned, around 23,960 manhours per
day would have to be devoted by petitioner OMA to obtain
an accurate and timely determination of a political
candidate's remaining airtime minutes. During the
campaign period, petitioner OMA would have to spend an
estimated 27,494,720 manhours in monitoring the election
campaign commercials of the different candidates in the
country.1âwphi1
5.46 In order to carry-out the obligations imposed by the
New Rules, petitioner OMA further estimates that it would
need to engage and train 39,055 additional persons on an
eight-hour shift, and assign them all over the country to
perform the required monitoring of radio, television and
cable TV broadcasts. In addition, it would likewise need to
allot radio, television, recording equipment and
computers, as well as telecommunications equipment, for
this surveillance and monitoring exercise, thus imputing
additional costs to the company. Attached herewith are
the computations explaining how the afore-said figures
were derived and the conservative assumptions made by
petitioner OMA in reaching said figures, as Annex "H".
5.47 Needless to say, such time, manpower
requirements, expense and effort would have to be
replicated by each and every radio station to ensure that
they have properly monitored around 33 national and
more than 40,000 local candidates' airtime minutes and
thus, prevent any risk of administrative and criminal
liability.60
The Court cannot agree with the contentions of GMA. The
apprehensions of the petitioner appear more to be the result of a
misappreciation of the real import of the regulation rather than a
real and present threat to its broadcast activities. The Court is
more in agreement with the respondent when it explained that:
The legal duty of monitoring lies with the Comelec. Broadcast
stations are merely required to submit certain documents to aid
the Comelec in ensuring that candidates are not sold airtime in
excess of the allowed limits. These documents include: (1)
certified true copies of broadcast logs, certificates of
performance, and certificates of acceptance, or other analogous
record on specified dates (Section 9[d][3], Resolution No. 9615, in
relation to Section 6.2, R.A. 9006; and (2) copies of all contract
for advertising, promoting or opposing any political party or the
candidacy of any person for public office within five (5) days after
its signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do
monitoring, much less monitoring in real time. GMA grossly
exaggerates when it claims that the non-existent duty would
require them to hire and train an astounding additional 39,055
personnel working on eight-hour shifts all over the country.61
The Court holds, accordingly, that, contrary to petitioners'
contention, the Reporting Requirement for the COMELEC's
monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No.
9631,62 the respondent revised the third paragraph of Section 9
(a). As revised, the provision now reads:
Appearance or guesting by a candidate on any bona fide
newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to
the presentation of the subject or subjects covered by the news
documentary, or on-the-spot coverage of bona fide news events,
including but not limited to events sanctioned by the Commission
on Elections, political conventions, and similar activities, shall not
be deemed to be broadcast election propaganda within the
meaning of this provision. For purposes of monitoring by the
COMELEC and ensuring that parties and candidates were
afforded equal opportunities to promote their candidacy, the
media entity shall give prior notice to the COMELEC, through the
appropriate Regional Election Director (RED), or in the case of
the National Capital Region (NCR), the Education and
Information Department (EID). If such prior notice is not feasible
or practicable, the notice shall be sent within twenty-four (24)
hours from the first broadcast or publication. Nothing in the
1awp++i1
foregoing sentence shall be construed as relieving broadcasters,
in connection with the presentation of newscasts, news
interviews, news documentaries, and on-the-spot coverage of
news events, from the obligation imposed upon them under
Sections 10 and 14 of these Rules."63
Further, the petitioner in G.R. No. 205374 assails the
constitutionality of such monitoring requirement, contending,
among others, that it constitutes prior restraint. The Court finds
otherwise. Such a requirement is a reasonable means adopted by
the COMELEC to ensure that parties and candidates are afforded
equal opportunities to promote their respective candidacies.
Unlike the restrictive aggregate-based airtime limits, the directive
to give prior notice is not unduly burdensome and unreasonable,
much less could it be characterized as prior restraint since there
is no restriction on dissemination of information before broadcast.
Additionally, it is relevant to point out that in the original
Resolution No. 9615, the paragraph in issue was worded in this
wise:
Appearance or guesting by a candidate on any bona fide
newscast, bona fide news interview, bona fide news
documentary, if the appearance of the candidate is incidental to
the presentation of the subject or subjects covered by the news
documentary, or on-the-spot coverage of bona fide news events,
including but not limited to events sanctioned by the Commission
on Elections, political conventions, and similar activities, shall not
be deemed to be broadcast election propaganda within the
meaning of this provision. To determine whether the appearance
or guesting in a program is bona fide, the broadcast stations or
entities must show that (1) prior approval of the Commission was
secured; and (2) candidates and parties were afforded equal
opportunities to promote their candidacy. Nothing in the foregoing
sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews,
news documentaries, and on-the-spot coverage of news events,
from the obligation imposed upon them under Sections 10 and 14
of these Rules.64
Comparing the original with the revised paragraph, one could
readily appreciate what the COMELEC had done - to modify the
requirement from "prior approval" to "prior notice." While the
former may be suggestive of a censorial tone, thus inviting a
charge of prior restraint, the latter is more in the nature of a
content-neutral regulation designed to assist the poll body to
undertake its job of ensuring fair elections without having to
undertake any chore of approving or disapproving certain
expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice"
requirement as not constitutionally infirm, it similarly concludes
that the "right to reply" provision is reasonable and consistent with
the constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No.
9631, provides:
SECTION 14. Right to Reply. - All registered political parties,
party-list groups or coalitions and bona fide candidates shall have
the right to reply to charges published or aired against them. The
reply shall be given publicity by the newspaper, television, and/or
radio station which first printed or aired the charges with the same
prominence or in the same page or section or in the same time
slot as the first statement.
Registered political parties, party-list groups or coalitions and
bona fide candidates may invoke the right to reply by submitting
within a nonextendible period of forty-eight hours from first
broadcast or publication, a formal verified claim against the media
outlet to the COMELEC, through the appropriate RED. The claim
shall include a detailed enumeration of the circumstances and
occurrences which warrant the invocation of the right to reply and
must be accompanied by supporting evidence, such a copy of the
publication or recording of the television or radio broadcast, as
the case may be. If the supporting evidence is not yet available
due to circumstances beyond the power of the claimant, the latter
shall supplement his claim as soon as the supporting evidence
becomes available, without delay on the part of the claimant. The
claimant must likewise furnish a copy of the verified claim and its
attachments to the media outlet concerned prior to the filing of the
claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim
within forty-eight ( 48) hours from receipt thereof, including
supporting evidence, and if circumstances warrant, give notice to
the media outlet involved for appropriate action, which shall,
within forty-eight ( 48) hours, submit its comment, answer or
response to the RED, explaining the action it has taken to
address the claim. The media outlet must likewise furnish a copy
of the said comment, answer or response to the claimant invoking
the right to reply.
Should the claimant insist that his/her right to reply was not
addressed, he/she may file the appropriate petition and/or
complaint before the Commission on Elections or its field offices,
which shall be endorsed to the Clerk of Court.
The attack on the validity of the "right to reply" provision is
primarily anchored on the alleged ground of prior restraint,
specifically in so far as such a requirement may have a chilling
effect on speech or of the freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the
interplay of the relevant interests - the constitutional
mandate granting candidates the right to reply and the
inviolability of the constitutional freedom of expression,
speech, and the press - will show that the Right to Reply,
as provided for in the Assailed Resolution, is an
impermissible restraint on these fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for
the balancing of interests test) with respect to the present
controversy will show that the Constitution does not tilt the
balance in favor of the Right to Reply provision in the
Assailed Resolution and the supposed governmental
interest it attempts to further.65
The Constitution itself provides as part of the means to ensure
free, orderly, honest, fair and credible elections, a task addressed
to the COMELEC to provide for a right to reply.66 Given that
express constitutional mandate, it could be seen that the
Fundamental Law itself has weighed in on the balance to be
struck between the freedom of the press and the right to reply.
Accordingly, one is not merely to see the equation as purely
between the press and the right to reply. Instead, the
constitutionallymandated desiderata of free, orderly, honest,
peaceful, and credible elections would necessarily have to be
factored in trying to see where the balance lies between press
and the demands of a right-to-reply.
Moreover, as already discussed by the Court in
Telecommunications and Broadcast Attorneys of the Philippines,
Inc. v. Commission on Elections.67
In truth, radio and television broadcasting companies, which are
given franchises, do not own the airwaves and frequencies
through which they transmit broadcast signals and images. They
are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the grantee of
some form of public service. x x x68
Relevant to this aspect are these passages from an American
Supreme Court decision with regard to broadcasting, right to reply
requirements, and the limitations on speech:
We have long recognized that each medium of expression
presents special First Amendment problems. Joseph Burstyn, Inc.
v. Wilson, 343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And
of all forms of communication, it is broadcasting that has received
the most limited First Amendment protection. Thus, although
other speakers cannot be licensed except under laws that
carefully define and narrow official discretion, a broadcaster may
be deprived of his license and his forum if the Commission
decides that such an action would serve "the public interest,
convenience, and necessity." Similarly, although the First
Amendment protects newspaper publishers from being required
to print the replies of those whom they criticize, Miami Herald
Publishing Co. v. Tornillo, 418 US 241, 41 L Ed 2d 730, 94 S Ct
2831, it affords no such protection to broadcasters; on the
contrary, they must give free time to the victims of their criticism.
Red Lion Broadcasting Co. v. FCC, 395 US. 367, 23 L Ed 2d 371,
89 S Ct 1794.
The reasons for these distinctions are complex, but two have
relevance to the present case. First, the broadcast media have
established a uniquely pervasive presence in the lives of all
Americans. Patently offensive, indecent material presented over
the airwaves confronts the citizen not only in public, but also in
the privacy of the home, where the individual's right to be left
alone plainly outweighs the First Amendment rights of an intruder.
Rowan v. Post Office Dept., 397 US 728, 25 L Ed 2d 736, 90 S Ct
1484. Because the broadcast audience is constantly tuning in and
out, prior warnings cannot completely protect the listener or
viewer from unexpected program content. To say that one may
avoid further offense by turning off the radio when he hears
indecent language is like saying that the remedy for an assault is
to run away after the first blow. One may hang up on an indecent
phone call, but that option does not give the caller a constitutional
immunity or avoid a harm that has already taken place.
Second, broadcasting is uniquely accessible to children, even
those too young to read. Although Cohen's written message
might have been incomprehensible to a first grader, Pacifica's
broadcast could have enlarged a child's vocabulary in an instant.
Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores
and motion picture theaters, for example, may be prohibited from
making indecent material available to children. We held in
Ginsberg v. New York, 390 US 629, that the government's
interest in the "well-being of its youth" and in supporting "parents'
claim to authority in their own household" justified the regulation
of otherwise protected expression. The ease with which children
may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special treatment
of indecent broadcasting.69
Given the foregoing considerations, the traditional notions of
preferring speech and the press over so many other values of
society do not readily lend itself to this particular matter. Instead,
additional weight should be accorded on the constitutional
directive to afford a right to reply. If there was no such mandate,
then the submissions of petitioners may more easily commend
themselves for this Court's acceptance. But as noted above, this
is not the case. Their arguments simplistically provide minimal
importance to that constitutional command to the point of
marginalizing its importance in the equation. TERESITA J.
ARTURO D. BRION***
LEONARDO-DE CASTRO
Associate Justice
Associate Justice
In fine, when it comes to election and the exercise of freedom of
speech, of expression and of the press, the latter must be
properly viewed in context as being necessarily made to MARIANO C. DEL
LUCAS P. BERSAMIN
accommodate the imperatives of fairness by giving teeth and CASTILLO
Associate Justice
substance to the right to reply requirement. Associate Justice

WHEREFORE, premises considered, the petitions are MARTIN S. VILLARAMA,

PARTIALLY GRANTED, Section 9 (a) of Resolution No. 9615, as JOSE PORTUGAL PEREZ
JR.
amended by Resolution No. 9631, is declared Associate Justice
Associate Justice
UNCONSTITUTIONAL and, therefore, NULL and VOID. The
constitutionality of the remaining provisions of Resolution No.
JOSE CATRAL
9615, as amended by Resolution No. 9631, is upheld and remain BIENVENIDO L. REYES
MENDOZA****
in full force and effect. Associate Justice
Associate Justice
In view of this Decision, the Temporary Restraining Order issued
by the Court on April 16, 2013 is hereby made PERMANENT. See Separate Concurring
ESTELA M. PERLAS- Opinion
BERANBE MARVIC MARIO VICTOR
SO ORDERED.
Associate Justice F. LEONEN
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
On leave
WE CONCUR: FRANCIS H. JARDELEZA*****
Associate Justice
On leave
MARIA LOURDES P. A. SERENO* CERTIFICATION
Chief Justice
Pursuant to Section 13, Article VIII of the Constitution, I certify
that the conclusions in the above Decision had been reached in
See Saparate Concurring consultation before the case was assigned to the writer of the
Opinion PRESBITERO J. opinion of the Court.
ANTONIO T. CARPIO** VELASCO, JR.
Associate Justice Associate Justice
ANTONIO T. CARPIO
Acting Chief Justice
Acting Chief Justice
G.R. No. 205728 January 21, 2015 On February 21, 2013, petitioners posted two (2) tarpaulins within
a private compound housing the San Sebastian Cathedral of
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST Bacolod. Each tarpaulin was approximately six feet (6') by ten
REV. BISHOP VICENTE M. NAVARRA and THE BISHOP feet (10') in size. They were posted on the front walls of the
HIMSELF IN HIS PERSONAL CAPACITY, Petitioners, cathedral within public view. The first tarpaulin contains the
vs. message "IBASURA RH Law" referring to the Reproductive
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER Health Law of 2012 or Republic Act No. 10354. The second
OF BACOLOD CITY, ATTY. MAVIL V. tarpaulin is the subject of the present case.4 This tarpaulin
MAJARUCON, Respondents. contains the heading "Conscience Vote" and lists candidates as
either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH)
DECISION Team Patay" with an "X" mark.5 The electoral candidates were
classified according to their vote on the adoption of Republic Act
No. 10354, otherwise known as the RH Law.6 Those who voted
LEONEN, J.:
for the passing of the law were classified by petitioners as
comprising "Team Patay," while those who voted against it form
"The Philippines is a democratic and republican State. "Team Buhay":7
Sovereignty resides in the people and all government authority
emanates from them." – Article II, Section 1, Constitution
TEAM BUHAY TEAM PATAY
All governmental authority emanates from our people. No Estrada, JV Angara, Juan Edgardo
unreasonable restrictions of the fundamental and preferred right
to expression of the electorate during political contests no matter Honasan, Gregorio Casiño, Teddy
how seemingly benign will be tolerated.
Magsaysay, Mitos Cayetano, Alan Peter
This case defines the extent that our people may shape the Pimentel, Koko Enrile, Jackie
debates during elections. It is significant and of first impression.
We are asked to decide whether the Commission on Elections Trillanes, Antonio Escudero, Francis
(COMELEC) has the competence to limit expressions made by Villar, Cynthia Hontiveros, Risa
the citizens — who are not candidates — during elections.
Party List Buhay Legarda, Loren
Before us is a special civil action for certiorari and prohibition with Party List Ang Pamilya Party List Gabriela
application for preliminary injunction and temporary restraining
order1 under Rule 65 of the Rules of Court seeking to nullify Party List Akbayan
COMELEC’s Notice to Remove Campaign Materials2 dated
Party List Bayan Muna
February 22, 2013 and letter3 issued on February 27, 2013.
Party List Anak Pawis
The facts are not disputed.
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 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
issued on February 27, 2013. They pray that: (1) the petition be CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
given due course; (2) a temporary restraining order (TRO) and/or OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF
a writ of preliminary injunction be issued restraining respondents THIS COURT VIA RULE 65 PETITION[;]
from further proceeding in enforcing their orders for the removal
of the Team Patay tarpaulin; and (3) after notice and hearing, a A. WHETHER PETITIONERS VIOLATED THE
decision be rendered declaring the questioned orders of HIERARCHY OF COURTS DOCTRINE AND
respondents as unconstitutional and void, and permanently JURISPRUDENTIAL RULES GOVERNING
restraining respondents from enforcing them or any other similar APPEALS FROM COMELEC DECISIONS;
order.15
B. ASSUMING ARGUENDO THAT THE
After due deliberation, this court, on March 5, 2013, issued a AFOREMENTIONED ORDERS ARE NOT
temporary restraining order enjoining respondents from enforcing CONSIDERED JUDGMENTS/FINAL
the assailed notice and letter, and set oral arguments on March ORDERS/RESOLUTIONS OF THE COMELEC,
19, 2013.16 WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW
On March 13, 2013, respondents filed their comment17 arguing THIS COURT TO TAKE COGNIZANCE OF THE
that (1) a petition for certiorari and prohibition under Rule 65 of CASE[;]
the Rules of Court filed before this court is not the proper remedy
to question the notice and letter of respondents; and (2) the II.
tarpaulin is an election propaganda subject to regulation by
COMELEC pursuant to its mandate under Article IX-C, Section 4 WHETHER IT IS RELEVANT TODETERMINE WHETHER THE
of the Constitution. Hence, respondents claim that the issuances TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR
ordering its removal for being oversized are valid and "ELECTION PROPAGANDA" CONSIDERING THAT
constitutional.18 PETITIONER IS NOT A POLITICAL CANDIDATE[;]

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

WHEREFORE, the instant petition is GRANTED. The temporary ESTELA M. PERLAS-

BIENVENIDO L. REYES
restraining order previously issued is hereby made permanent. BERNABE
Associate Justice
The act of the COMELEC in issuing the assailed notice dated Associate Justice
February 22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.
No Part
SO ORDERED. FRANCIS H. JARDELEZA**
Associate Justice
MARVIC M.V.F. LEONEN
Associate Justice CERTIFICATION

WE CONCUR: 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
MARIA LOURDES P.A. SERENO
Chief Justice
PRESBITERO J.
ANTONIO T. CARPIO
VELASCO, JR.
Associate Justice
Associate Justice

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

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL MARTN S. VILLARAMA,

CASTILLO JR.
Associate Justice Associate Justice
 EN BANC
G.R. No. 206020, April 14, 2015
1-UNITED TRANSPORT KOALISYON (1-
UTAK), Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
DECISION
REYES, J.:
The right to participate in electoral processes is a basic
and fundamental right in any democracy. It includes not
only the right to vote, but also the right to urge others to
vote for a particular candidate. The right to express one's
preference for a candidate is likewise part of the
fundamental right to free speech. Thus, any
governmental restriction on the right to convince others
to vote for a candidate carries with it a heavy
presumption of invalidity.
This is a petition for certiorari1 under Rule 64 and Rule 65
of the Rules of Court filed by 1-United Transport
Koalisyon (petitioner), a party-list organization, assailing
Section 7(g) items (5) and (6), in relation to Section 7(f),
of Resolution No. 96152 of the Commission on Elections
(COMELEC).
The Facts
On February 12, 2001, Republic Act (R.A.) No. 9006,
otherwise known as the "Fair Elections Act", was passed.
Section 9 thereof provides:
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 of the 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.
On January 15, 2013, the COMELEC promulgated
Resolution No. 9615, which provided for the rules
implementing R.A. No. 9006 in connection with the May
13, 2013 national and local elections and subsequent
elections. Section 7 thereof, which enumerates the
prohibited forms of election propaganda, pertinently
provides:
SEC. 7. Prohibited Forms of Election Propaganda. -
During the campaign period, it is unlawful:
xxxx
(f) To post, display or exhibit any election campaign or
propaganda material outside of authorized common
poster areas, in public places, or in private properties
without the consent of the owner thereof.
(g) Public places referred to in the previous subsection
(f) include any of the following:
xxxx
5. Public utility vehicles such as buses, jeepneys, trains,
taxi cabs, ferries, pedicabs and tricycles, whether
motorized or not;
6. Within the premises of public transport terminals, such
as bus terminals, airports, seaports, docks, piers, train
stations, and the like.
The violation of items [5 and 6] under subsection (g)
shall be a cause for the revocation of the public utility
franchise and will make the owner and/or operator of the
transportation service and/or terminal liable for an
election offense under Section 9 of Republic Act No. 9006
as implemented by Section 18 (n) of these Rules.3
In its letter4 dated January 30, 2013, the petitioner,
through its president, Melencio F. Vargas, sought
clarification from the COMELEC as regards the application
of Resolution No. 9615, particularly Section 7(g) items
(5) and (6), in relation to Section 7(f), vis-a-vis privately
owned public utility vehicles (PUVs) and transport
terminals. The petitioner explained that the prohibition
stated in the aforementioned provisions impedes the
right to free speech of the private owners of PUVs and
transport terminals. The petitioner then requested the
COMELEC to reconsider the implementation of the
assailed provisions and allow private owners of PUVs and
transport terminals to post election campaign materials
on their vehicles and transport terminals.
On February 5, 2013, the COMELEC en banc issued
Minute Resolution No. 13-0214,5 which denied the
petitioner's request to reconsider the implementation of
Section 7(g) items (5) and (6), in relation to Section 7(f),
of Resolution No. 9615. The COMELEC en banc, adopting
the recommendation of Commissioner Christian Robert S.
Lim, opined that:
From the foregoing, x x x the primary fact in
consideration here is actually whether 1 -UTAK or any
other [PUV] owners in the same position do in fact
possess a franchise and/or certificate of public
convenience and operate as a public utility. If it
does not, then the ruling in Adiong applies squarely. If it
does, then its operations, pursuant to Section 4, Article
IX-C of the Constitution, will be placed directly under the
supervision and regulation of the Commission for the
duration of the election period so as to ensure equality of
opportunity, time, and space for all candidates in the
placement of political advertisements. Having placed
their property for use by the general public and having
secured a license or permit to do so, 1-UTAK and other
PUV owners, as well as transport terminal owners, cannot
now complain that their property is subject to regulation
by the State. Securing a franchise or a certificate of
public convenience in their favor does not exempt them
from the burdens imposed by the Constitution, Republic
Act No. 9006 x x x, and other related statutes. It must
be stressed that the Constitution itself, under Section 6,
Article XII, commands that the use of property bears
a social function and all economic agents shall
contribute to the common good; and there is no
higher Common good than that as espoused in R.A. No.
9006 - the equalization of opportunities for all candidates
for political office during elections - a policy which Res.
No. 9615 merely implements.
As required in Adiong, and in compliance with
the O'Brien standards, the prohibition furthers two
important and substantial governmental interests -
equalizing opportunity, time, and space for all
candidates, and putting to a stop excessive campaign
spending. The regulation bears a clear and reasonable
nexus with these Constitutionally- and statutorily-
sanctioned objectives, and the infringement of freedom is
merely incidental and limited as to time. The Commission
has not taken away all avenues of expression available to
PUV and transport terminal owners. They may express
their political preferences elsewhere.
The exact purpose for placing political advertisements on
a PUV or in transport terminals is exactly because it is
public and can be seen by all; and although it is true
that private vehicles ply the same route as public
vehicles, the exposure of a [PUV] servicing the general,
riding public is much more compared to private
vehicles. Categorizing PUVs and transport terminals
as 'public places' under Section 7 (f) of Reso. No.
9615 is therefore logical. The same reasoning for
limiting political advertisements in print media, in radio,
and in television therefore holds true for political
advertisements in PUVs and transport terminals.6
Hence, the instant petition.
Arguments of the Petitioner
The petitioner maintains that Section 7(g) items (5) and
(6), in relation to Section 7(f), of Resolution No. 9615
violate the right to free speech of the owners of PUVs
and transport terminals; that the prohibition curtails their
ideas of who should be voted by the public. The
petitioner also claims that there is no substantial public
interest threatened by the posting of political
advertisements on PUVs and transport terminals to
warrant the prohibition imposed by the COMELEC.
Further, the petitioner posits that the ownership of the
PUVs per se, as well as the transport terminals, remains
private and, hence, the owners thereof could not be
prohibited by the COMELEC from expressing their political
opinion lest their property rights be unduly intruded
upon.
Further, assuming that substantial public interest exists
in the said prohibition imposed under Resolution No.
9615, the petitioner claims that the curtailment of the
right to free speech of the owners of PUVs and transport
terminals is much greater than is necessary to achieve
the desired governmental purpose, i.e., ensuring equality
of opportunity to all candidates in elective office.
Arguments of COMELEC
On the other hand, the COMELEC posits that privately-
owned PUVs and transport terminals are public spaces
that are subject to its regulation. It explains that under
the Constitution, the COMELEC has the power to enforce
and administer all laws and regulations relative to the
conduct of an election, including the power to regulate
the enjoyment or utilization of all franchises and permits
for the operation of transportation utilities.
The COMELEC points out that PUVs and private transport
terminals hold a captive audience - the commuters, who
have no choice but be subjected to the blare of political
propaganda. Thus, the COMELEC avers, it is within its
constitutional authority to prevent privately-owned PUVs
and transport terminals from concurrently serving
campaign materials to the captive audience that they
transport.
The COMELEC further claims that Resolution No. 9615 is
a valid content-neutral regulation and, thus, does not
impinge on the constitutional right to freedom of speech.
It avers that the assailed regulation is within the
constitutional power of the COMELEC pursuant to Section
4, Article IX-C of the Constitution. The COMELEC alleges
that the regulation simply aims to ensure equal campaign
opportunity, time, and space for all candidates - an
important and substantial governmental interest, which
is totally unrelated to the suppression of free expression;
that any restriction on free speech is merely incidental
and is no greater than is essential to the furtherance of
the said governmental interest.
The Issue
The petitioner presents the following issues for the
Court's resolution:
I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE
RIGHT TO FREE SPEECH OF THE OWNERS OF [PUVs]
AND TRANSPORT TERMINALS.
II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A
RESTRAINT TO FREE SPEECH AND EXPRESSION FOR
FAILURE TO SATISFY THE O'BRIEN TEST.
III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO
GIVE AN EQUAL OPPORTUNITY TO INFORM THE
ELECTORATE IS NOT IMPAIRED BY POSTING
POLITICAL ADVERTISEMENTS ON PUVs AND
TRANSPORT TERMINALS.
IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS
DIFFERENT AND INDEPENDENT FROM THE FRANCHISE
OR OPERATION OF THE PUBLIC UTILITY, THE FORMER
BEING BEYOND THE POWER OF REGULATION BY THE
COMELEC.7
In sum, the issue presented for the Court's resolution is
whether Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615, which prohibits the
posting of any election campaign or propaganda
material, inter alia, in PUVs and public transport
terminals are valid regulations.
Ruling of the Court
The petition is meritorious.
Resolution No. 9615, which was promulgated pursuant to
Section 4, Article IX-C of the Constitution and the
provisions of R.A. No. 9006, lays down the administrative
rules relative to the COMELEC's exercise of its
supervisory and regulatory powers over all franchises
and permits for the operation of transportation and other
public utilities, media of communication or information,
and all grants, special privileges, or concessions granted
by the Government.
Like any other administrative regulations, Resolution No.
9615, or any part thereof, must not run counter to the
Constitution. It is basic that if a law or an administrative
rule violates any norm of the Constitution, that issuance
is null and void and has no effect. The Constitution is the
basic law to which all laws must conform; no act shall be
valid if it conflicts with the Constitution.8 In this regard,
an administrative regulation, even if it purports to
advance a legitimate governmental interest, may not be
permitted to run roughshod over the cherished rights of
the people enshrined in the Constitution.
Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No.
9615 are prior restraints on speech.
Free speech may be identified with the liberty to discuss
publicly and truthfully any matter of public concern
without prior restraint or censorship and subsequent
punishment.9 Prior restraint refers to official
governmental restrictions on the press or other forms of
expression in advance of actual publication or
dissemination. Freedom from prior restraint is largely
freedom from government censorship of publications,
whatever the form of censorship, and regardless of
whether it is wielded by the executive, legislative or
judicial branch of the government.10 Any system of prior
restraints of expression comes to this Court bearing a
heavy presumption against its validity.11
Section 7(g) items (5) and (6), in relation to Section 7(f),
of Resolution No. 9615 unduly infringe on the
fundamental right of the people to freedom of speech.
Central to the prohibition is the freedom of
individuals, i.e., the owners of PUVs and private transport
terminals, to express their preference, through the
posting of election campaign material in their property,
and convince others to agree with them.
Pursuant to the assailed provisions of Resolution No.
9615, posting an election campaign material during an
election period in PUVs and transport terminals carries
with it the penalty of revocation of the public utility
franchise and shall make the owner thereof liable for an
election offense.
The prohibition constitutes a clear prior restraint on the
right to free expression of the owners of PUVs and
transport terminals. As a result of the prohibition, owners
of PUVs and transport terminals are forcefully and
effectively inhibited from expressing their preferences
under the pain of indictment for an election offense and
the revocation of their franchise or permit to operate.
It is now deeply embedded in our jurisprudence that
freedom of speech and of the press enjoys a preferred
status in our hierarchy of rights. The rationale is that the
preservation of other rights depends on how well we
protect our freedom of speech and of the press.12 It has
been our constant holding that this preferred freedom
calls all the more for utmost respect when what may be
curtailed is the dissemination of information to make
more meaningful the equally vital right of suffrage.13
Thus, in Adiong v. COMELEC,14 the Court struck down the
COMELEC's prohibition against the posting of decals and
stickers on "mobile places." The Court ratiocinated that:
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 newspaper 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.15 (Emphases ours)
The assailed prohibition on posting
election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.
The COMELEC claims that while Section 7(g) items (5)
and (6) of Resolution No. 9615 may incidentally restrict
the right to free speech of owners of PUVs and transport
terminals, the same is nevertheless constitutionally
permissible since it is a valid content-neutral regulation.
The Court does not agree.
A content-neutral regulation, i.e., which is merely
concerned with the incidents of the speech, or one that
merely controls the time, place or manner, and under
well-defined standards,16 is constitutionally permissible,
even if it restricts the right to free speech, provided that
the following requisites concur: first, the government
regulation is within the constitutional power of the
Government; second, it furthers an important or
substantial governmental interest; third, the
governmental interest is unrelated to the suppression of
free expression; and fourth, the incidental restriction on
freedom of expression is no greater than is essential to
the furtherance of that interest.17
Section 7(g) items (5) and (6) of Resolution No. 9615 are
content-neutral regulations since they merely control the
place where election campaign materials may be posted.
However, the prohibition is still repugnant to the free
speech clause as it fails to satisfy all of the requisites for
a valid content-neutral regulation.
It is conceded that Resolution No. 9615, including the
herein assailed provisions, furthers an important and
substantial governmental interest, i.e., ensuring equal
opportunity, time and space among candidates aimed at
the holding of free, orderly, honest, peaceful, and
credible elections. It is further conceded that the
governmental interest in imposing the said prohibition is
unrelated to the suppression of free expression.
However, Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC under
Section 4, Article IX-C of the Constitution. Also, there is
absolutely no necessity to restrict the right to free speech
of the owners of PUVs and transport terminals.
The COMELEC may only regulate
the franchise or permit to operate and
not the ownership per se of PUVs
and transport terminals.
The prohibition under Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 9615 is not
within the COMELEC's constitutionally delegated power of
supervision or regulation. It is not disputed that the
COMELEC has the power to supervise or regulate the
enjoyment or utilization of all franchises or permits for
the operation of transportation utilities during an election
period. Section 4, Article IX-C of the Constitution, thus
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.
Nevertheless, the constitutional grant of supervisory and
regulatory powers to the COMELEC over franchises and
permits to operate, though seemingly unrestrained, has
its limits. Notwithstanding the ostensibly broad
supervisory and regulatory powers granted to the
COMELEC during an election period under Section 4,
Article IX-C of the Constitution, the Court had previously
set out the limitations thereon. In Adiong, the Court,
while recognizing that the COMELEC has supervisory
power vis-a-vis the conduct and manner of elections
under Section 4, Article IX-C of the Constitution,
nevertheless held that such supervisory power does not
extend to the very freedom of an individual to express
his preference of candidates in an election by placing
election campaign stickers on his vehicle.
In National Press Club v. COMELEC,18 while the Court
upheld the constitutionality of a prohibition on the selling
or giving free of charge, except to the COMELEC, of
advertising space and commercial time during an election
period, it was emphasized that the grant of supervisory
and regulatory powers to the COMELEC under Section 4,
Article IX-C of the Constitution, is limited to ensuring
equal opportunity, time, space, and the right to reply
among candidates.
Further, in Social Weather Stations, Inc. v.
COMELEC,19 the Court, notwithstanding the grant of
supervisory and regulatory powers to the COMELEC
under Section 4, Article IX-C of the Constitution, declared
unconstitutional a regulation prohibiting the release of
election surveys prior to the election since it "actually
suppresses a whole class of expression, while allowing
the expression of opinion concerning the same subject
matter by newspaper columnists, radio and [television
(TV)] commentators, armchair theorists, and other
opinion makers."20
In the instant case, the Court further delineates the
constitutional grant of supervisory and regulatory powers
to the COMELEC during an election period. As worded,
Section 4, Article IX-C of the Constitution only grants
COMELEC supervisory and regulatory powers over the
enjoyment or utilization "of all franchises or permits for
the operation," inter alia, of transportation and other
public utilities. The COMELEC's constitutionally delegated
powers of supervision and regulation do not extend to
the ownership per se of PUVs and transport terminals,
but only to the franchise or permit to operate the same.
There is a marked difference between the franchise or
permit to operate transportation for the use of the public
and the ownership per se of the vehicles used for public
transport. Thus, in Tatad v. Garcia, Jr.,21 the Court
explained that:
What private respondent owns are the rail tracks, rolling
stocks like the coaches, rail stations, terminals and the
power plant, not a public utility. While a franchise is
needed to operate these facilities to serve the public,
they do not by themselves constitute a public utility.
What constitutes a public utility is not their ownership
but their use to serve the public x x x.
The Constitution, in no uncertain terms, requires a
franchise for the operation of a public utility. However, it
does not require a franchise before one can own the
facilities needed to operate a public utility so long as it
does not operate them to serve the public.
xxxx
In law, there is a clear distinction between the
"operation" of a public utility and the ownership of
the facilities and equipment used to serve the
public.
xxxx
The right to operate a public utility may exist
independently and separately from the ownership
of the facilities thereof. One can own said facilities
without operating them as a public utility, or
conversely, one may operate a public utility
without owning the facilities used to serve the
public. The devotion of property to serve the public may
be done by the owner or by the person in control thereof
who may not necessarily be the owner thereof.
This dichotomy between the operation of a public utility
and the ownership of the facilities used to serve the
public can be very well appreciated when we consider the
transportation industry. Enfranchised airline and shipping
companies may lease their aircraft and vessels instead of
owning them themselves.22 (Emphases ours)
The franchise or permit to operate transportation utilities
is a privilege granted to certain persons to engage in the
business of transporting people or goods; it does not
refer to the ownership of the vehicle per se. Ownership is
a relation in private law by virtue of which a thing
pertaining to one person is completely subjected to his
will in everything not prohibited by public law or the
concurrence with the rights of another.23 Thus, the owner
of a thing has the right to enjoy and dispose of a thing,
without other limitations than those established by law.24
One such limitation established by law, as regards PUVs,
is the franchise or permit to operate. However, a
franchise or permit to operate a PUV is a limitation only
on certain aspects of the ownership of the vehicle
pertinent to the franchise or permit granted, but not on
the totality of the rights of the owner over the vehicle.
Otherwise stated, a restriction on the franchise or permit
to operate transportation utilities is necessarily a
limitation on ownership, but a limitation on the rights of
ownership over the PUV is not necessarily a regulation on
the franchise or permit to operate the same.
A franchise or permit to operate transportation utilities
pertains to considerations affecting the operation of the
PUV as such, e.g., safety of the passengers, routes or
zones of operation, maintenance of the vehicle, of
reasonable fares, rates, and other charges, or, in certain
cases, nationality.25 Thus, a government issuance, which
purports to regulate a franchise or permit to operate
PUVs, must pertain to the considerations affecting its
operation as such. Otherwise, it becomes a regulation or
supervision not on the franchise or permit to operate, but
on the very ownership of the vehicle used for public
transport.

The expression of ideas or opinion of an owner of a PUV,
through the posting of election campaign materials on
the vehicle, does not affect considerations pertinent to
the operation of the PUV. Surely, posting a decal
expressing support for a certain candidate in an election
will not in any manner affect the operation of the PUV as
such. Regulating the expression of ideas or opinion in a
PUV, through the posting of an election campaign
material thereon, is not a regulation of the franchise or
permit to operate, but a regulation on the very ownership
of the vehicle.
The dichotomy between the regulation of the franchise or
permit to operate of a PUV and that of the very
ownership thereof is better exemplified in the case of
commercial advertisements posted on the vehicle. A
prohibition on the posting of commercial advertisements
on a PUV is considered a regulation on the ownership of
the vehicle per se; the restriction on the enjoyment of
the ownership of the vehicle does not have any relation
to its operation as a PUV.
On the other hand, prohibitions on the posting of
commercial advertisements on windows of buses,
because it hinders police authorities from seeing whether
the passengers inside are safe, is a regulation on the
franchise or permit to operate. It has a direct relation to
the operation of the vehicle as a PUV, i.e., the safety of
the passengers.
In the same manner, the COMELEC does not have the
constitutional power to regulate public transport
terminals owned by private persons. The ownership of
transport terminals, even if made available for use by the
public commuters, likewise remains private. Although
owners of public transport terminals may be required by
local governments to obtain permits in order to operate,
the permit only pertains to circumstances affecting the
operation of the transport terminal as such. The
regulation of such permit to operate should similarly be
limited to circumstances affecting the operation of the
transport terminal. A regulation of public transport
terminals based on extraneous circumstances, such as
prohibiting the posting of election campaign materials
thereon, amounts to regulating the ownership of the
transport terminal and not merely the permit to operate
the same.
Accordingly, Section 7(g) items (5) and (6) of Resolution
No. 9615 are not within the constitutionally delegated
power of the COMELEC to supervise or regulate the
franchise or permit to operate of transportation utilities.
The posting of election campaign material on vehicles
used for public transport or on transport terminals is not
only a form of political expression, but also an act of
ownership - it has nothing to do with the franchise or
permit to operate the PUV or transport terminal.
The rulings in National Press Club
and Osmena v. COMELEC26
find no application to this case.
The COMELEC pointed out that the issue presented in the
instant case is akin to the Court's rulings in National
Press Club and Osmeña. It explained that in both cases,
the Court sustained Section II(b) of R.A. No. 6646 or the
Electoral Reforms Law of 1997, which prohibits
newspapers, radio broadcasting or TV stations, and other
mass media from selling or giving print space or airtime
for campaign or other political purposes, except to the
COMELEC, during the election campaign. The COMELEC
averred that if the legislature can empower it to impose
an advertising ban on mass media, it could likewise
empower it to impose a similar ban on PUVs and
transport terminals.
The Court does not agree.
The restriction imposed under Section ll(b) of R.A. No.
6646 has a direct relation to the enjoyment and
utilization of the franchise or permit to operate of
newspapers, radio broadcasting and TV stations, and
other mass media, which the COMELEC has the power to
regulate pursuant to Section 4, Article IX-C of the
Constitution. The print space or airtime is an integral part
of the franchise or permit to operate of mass media
utilities. Thus, the restriction under Section ll(b) of R.A.
No. 6646 is within the confines of the constitutionally
delegated power of the COMELEC under Section 4, Article
IX-C of the Constitution.
On the other hand, the prohibition on the posting of
election campaign materials under Section 7(g) items (5)
and (6) of Resolution No. 9615, as already explained,
does not have any relation to the franchise or permit of
PUVs and transport terminals to operate as such and,
hence, is beyond the power of the COMELEC under
Section 4, Article IX-C of the Constitution.
The restriction on free speech of
owners of PUVs and transport
terminals is not necessary to
further the stated governmental
interest.
Section 7(g) items (5) and (6) of Resolution No. 9615
likewise failed to satisfy the fourth requisite of a valid
content-neutral regulation, i.e., the incidental restriction
on freedom of expression is no greater than is essential
to the furtherance of that interest. There is absolutely no
necessity to restrict the right of the owners of PUVs and
transport terminals to free speech to further the
governmental interest. While ensuring equality of time,
space, and opportunity to candidates is an important and
substantial governmental interest and is essential to the
conduct of an orderly election, this lofty aim may be
achieved sans any intrusion on the fundamental right of
expression.
First, while Resolution No. 9615 was promulgated by the
COMELEC to implement the provisions of R.A. No. 9006,
the prohibition on posting of election campaign materials
on PUVs and transport terminals was not provided for
therein.
Second, there are more than sufficient provisions in our
present election laws that would ensure equal time,
space, and opportunity to candidates in elections. Section
6 of R.A. No. 9006 mandates that "all registered parties
and bona fide candidates shall have equal access to
media time and space" and outlines the guidelines to be
observed in the implementation thereof, viz:
Section 6. Equal Access to Media Time and Space. - All
registered parties and bona fide candidates shall have
equal access to media time and space. The following
guidelines may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth
(1/4) page in broadsheet and one-half (1/2) page in
tabloids thrice a week per newspaper, magazine or other
publications, during the campaign period.
6.2 a. Each bona fide candidate or registered political
party for a nationally elective office shall be entitled to
not more than one hundred twenty (120) minutes of
television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or
donation.
b. Each bona fide candidate or registered political party
for a locally elective office shall be entitled to not more
than sixty (60) minutes of television advertisement and
ninety (90) minutes of radio advertisement whether by
purchase or donation.
For this purpose, the COMELEC shall require any
broadcast station or entity to submit to the COMELEC a
copy of its broadcast logs and certificates of performance
for the review and verification of the frequency, date,
time and duration of advertisements broadcast for any
candidate or political party.
6.3 All mass media entities shall furnish the COMELEC
with a copy of all contracts for advertising, promoting or
opposing any political party or the candidacy of any
person for public office within five (5) days after its
signing. In every case, it shall be signed by the donor,
the candidate concerned or by the duly authorized
representative of the political party.
6.4 No franchise or permit to operate a radio or
television station shall be granted or issued, suspended
or cancelled during the election period. In all instances,
the COMELEC shall supervise the use and employment of
press, radio and television facilities insofar as the
placement of political advertisements is concerned to
ensure that candidates are given equal opportunities
under equal circumstances to make known their
qualifications and their stand on public issues within the
limits set forth in the Omnibus Election Code and
Republic Act No. 7166 on election spending.
The COMELEC shall ensure that radio or television or
cable television broadcasting entities shall not allow the
scheduling of any program or permit any sponsor to
manifestly favor or oppose any candidate or political
party by unduly or repeatedly referring to or including
said candidate and/or political party in such program
respecting, however, in all instances the right of said
broadcast entities to air accounts of significant news or
news worthy events and views on matters of public
interest.
6.5 All members of media, television, radio or print, shall
scrupulously report and interpret the news, taking care
not to suppress essential facts nor to distort the truth by
omission or improper emphasis. They shall recognize the
duty to air the other side and the duty to correct
substantive errors promptly.
6.6 Any mass media columnist, commentator,
announcer, reporter, on-air correspondent or personality
who is a candidate for any elective public office or is a
campaign volunteer for or employed or retained in any
capacity by any candidate or political party shall be
deemed resigned, if so required by their employer, or
shall take a leave of absence from his/her work as such
during the campaign period: Provided, That any media
practitioner who is an official of a political party or a
member of the campaign staff of a candidate or political
party shall not use his/her time or space to favor any
candidate or political party.
6.7 No movie, cinematograph or documentary portraying
the life or biography of a candidate shall be publicly
exhibited in a theater, television station or any public
forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed
by an actor or media personality who is himself a
candidate shall likewise be publicly exhibited in a theater
or any public forum during the campaign period.
Section 9 of R.A. No. 9006 authorizes political parties
and party-list groups and independent candidates to
erect common poster areas and candidates to post lawful
election campaign materials in private places, with the
consent of the owner thereof, and in public places or
property, which are allocated equitably and impartially.
Further, Section 1327 of R.A. No. 716628 provides for the
authorized expenses of registered political parties and
candidates for every voter; it affords candidates equal
opportunity in their election campaign by regulating the
amount that should be spent for each voter. Likewise,
Section 1429 of R.A. No. 7166 requires all candidates and
treasurers of registered political parties to submit a
statement of all contributions and expenditures in
connection with the election. Section 14 is a post-audit
measure that aims to ensure that the candidates did not
overspend in their election campaign, thereby enforcing
the grant of equal opportunity to candidates under
Section 13.
A strict implementation of the foregoing provisions of law
would suffice to achieve the governmental interest of
ensuring equal time, space, and opportunity for
candidates in elections. There is thus no necessity of still
curtailing the right to free speech of the owners of PUVs
and transport terminals by prohibiting them from posting
election campaign materials on their properties.
Section 7(g) items (5) and (6) of
Resolution No. 9615 are not justified under
the captive-audience doctrine.
The COMELEC further points out that PUVs and transport
terminals hold a "captive audience" - commuters who
have no choice but be subjected to the blare of political
propaganda. The COMELEC further claims that while
owners of privately owned PUVs and transport terminals
have a right to express their views to those who wish to
listen, they have no right to force their message upon an
audience incapable of declining to receive it.
The COMELEC's claim is untenable.
The captive-audience doctrine states that when a listener
cannot, as a practical matter, escape from intrusive
speech, the speech can be restricted.30 The "captive-
audience" doctrine recognizes that a listener has a right
not to be exposed to an unwanted message in
circumstances in which the communication cannot be
avoided.31
A regulation based on the captive-audience doctrine is in
the guise of censorship, which undertakes selectively to
shield the public from some kinds of speech on the
ground that they are more offensive than others. Such
selective restrictions have been upheld only when the
speaker intrudes on the privacy of the home or the
degree of captivity makes it either impossible or
impractical for the unwilling viewer or auditor to avoid
exposure.32
In Consolidated Edison Co. v. Public Service
Commission,33 the Supreme Court of the United States of
America (U.S. Supreme Court) struck down the order of
New York Public Service Commission, which prohibits
public utility companies from including inserts in monthly
bills discussing controversial issues of public policy. The
U.S. Supreme Court held that "[t]he prohibition cannot
be justified as being necessary to avoid forcing
appellant's views on a captive audience, since customers
may escape exposure to objectionable material simply by
throwing the bill insert into a wastebasket."34
Similarly, in Erznoznik v. City of Jacksonville,35 the U.S.
Supreme Court nullified a city ordinance, which made it a
public nuisance and a punishable offense for a drive-in
movie theater to exhibit films containing nudity, when
the screen is visible from a public street or place. The
U.S. Supreme Court opined that the degree of captivity is
not so great as to make it impracticable for an unwilling
viewer to avoid exposure, thus:
The Jacksonville ordinance discriminates among movies
solely on the basis of content. Its effect is to deter drive-
in theaters from showing movies containing any nudity,
however innocent or even educational. This
discrimination cannot be justified as a means of
preventing significant intrusions on privacy. The
ordinance seeks only to keep these films from being seen
from public streets and places where the offended viewer
readily can avert his eyes. In short, the screen of a
drive-in theater is not "so obtrusive as to make it
impossible for an unwilling individual to avoid
exposure to it." x x x Thus, we conclude that the
limited privacy interest of persons on the public streets
cannot justify this censorship of otherwise protected
speech on the basis of its content.36 (Emphasis ours)
Thus, a government regulation based on the captive-
audience doctrine may not be justified if the supposed
"captive audience" may avoid exposure to the otherwise
intrusive speech. The prohibition under Section 7(g)
items (5) and (6) of Resolution No. 9615 is not justified
under the captive-audience doctrine; the commuters are
not forced or compelled to read the election campaign
materials posted on PUVs and transport terminals. Nor
are they incapable of declining to receive the messages
contained in the posted election campaign materials
since they may simply avert their eyes if they find the
same unbearably intrusive.
The COMELEC, in insisting that it has the right to restrict
the posting of election campaign materials on PUVs and
transport terminals, cites Lehman v. City of Shaker
Heights,37 a case decided by the U.S. Supreme Court.
In Lehman, a policy of the city government, which
prohibits political advertisements on government-run
buses, was upheld by the U.S. Supreme Court. The U.S.
Supreme Court held that the advertising space on the
buses was not a public forum, pointing out that
advertisement space on government-run buses,
"although incidental to the provision of public
transportation, is a part of commercial venture."38 In the
same way that other commercial ventures need not
accept every proffer of advertising from the general
public, the city's transit system has the discretion on the
type of advertising that may be displayed on its vehicles.
Concurring in the judgment, Justice Douglas opined that
while Lehman, a candidate for state office who sought to
avail himself of advertising space on government-run
buses, "clearly has a right to express his views to those
who wish to listen, he has no right to force his message
upon an audience incapable of declining to receive
it."39 Justice Douglas concluded: "the right of the
commuters to be free from forced intrusions on their
privacy precludes the city from transforming its vehicles
of public transportation into forums for the dissemination
of ideas upon this captive audience."40
The COMELEC's reliance on Lehman is utterly misplaced.
In Lehman, the political advertisement was intended for
PUVs owned by the city government; the city
government, as owner of the buses, had the right to
decide which type of advertisements would be placed on
its buses. The U.S. Supreme Court gave primacy to the
city government's exercise of its managerial
decision, viz:
Revenue earned from long-term commercial advertising
could be jeopardized by a requirement that short-term
candidacy or issue-oriented advertisements be displayed
on car cards. Users would be subjected to the blare of
political propaganda. There could be lurking doubts about
favoritism, and sticky administrative problems might
arise in parceling out limited space to eager
politicians. In these circumstances, the managerial
decision to limit car card space to innocuous and
less controversial commercial and service-oriented
advertising does not rise to the dignity of First
Amendment violation. Were we to hold to the
contrary, display cases in public hospitals, libraries, office
buildings, military compounds, and other public facilities
immediately would become Hyde Parks open to every
would be pamphleteer and politician. This the
Constitution does not require.41 (Emphasis ours)
Lehman actually upholds the freedom of the owner of the
utility vehicles, i.e., the city government, in choosing the
types of advertisements that would be placed on its
properties. In stark contrast, Section 7(g) items (5) and
(6) of Resolution No. 9615 curtail the choice of the
owners of PUVs and transport terminals on the
advertisements that may be posted on their properties.
Also, the city government in Lehman had the right, nay
the duty, to refuse political advertisements on their
buses. Considering that what were involved were
facilities owned by the city government, impartiality, or
the appearance thereof, was a necessity. In the instant
case, the ownership of PUVs and transport terminals
remains private; there exists no valid reason to suppress
their political views by proscribing the posting of election
campaign materials on their properties.
Prohibiting owners of PUVs and transport
terminals from posting election campaign
materials violates the equal protection
clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do
not only run afoul of the free speech clause, but also of
the equal protection clause. One of the basic principles
on which this government was founded is that of the
equality of right, which is embodied in Section 1, Article
III of the 1987 Constitution.42 "Equal protection requires
that all persons or things similarly situated should be
treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words,
should not be treated differently, so as to give undue
favor to some and unjustly discriminate against
others."43
"The equal protection clause is aimed at all official state
actions, not just those of the legislature. Its inhibitions
cover all the departments of the government including
the political and executive departments, and extend to all
actions of a state denying equal protection of the laws,
through whatever agency or whatever guise is taken."44
Nevertheless, the guaranty of equal protection of the
laws is not a guaranty of equality in the application of the
laws to all citizens of the state. Equality of operation of
statutes does not mean their indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality,
not identity of rights. The Constitution does not require
that things, which are different in fact, be treated in law
as though they were the same. The equal protection
clause does not forbid discrimination as to things that are
different.45
In order that there can be valid classification so that a
discriminatory governmental act may pass the
constitutional norm of equal protection, it is necessary
that the four requisites of valid classification be complied
with, namely: (1) it must be based upon substantial
distinctions; (2) it must be germane to the purposes of
the law; (3) it must not be limited to existing conditions
only; and (4) it must apply equally to all members of the
class.46
It is conceded that the classification under Section 7(g)
items (5) and (6) of Resolution No. 9615 is not limited to
existing conditions and applies equally to the members of
the purported class. However, the classification remains
constitutionally impermissible since it is not based on
substantial distinction and is not germane to the purpose
of the law.
A distinction exists between PUVs and transport terminals
and private vehicles and other properties in that the
former, to be considered as such, needs to secure from
the government either a franchise or a permit to operate.
Nevertheless, as pointed out earlier, the prohibition
imposed under Section 7(g) items (5) and (6) of
Resolution No. 9615 regulates the ownership per se of
the PUV and transport terminals; the prohibition does not
in any manner affect the franchise or permit to operate
of the PUV and transport terminals.
As regards ownership, there is no substantial distinction
between owners of PUVs and transport terminals and
owners of private vehicles and other properties. As
already explained, the ownership of PUVs and transport
terminals, though made available for use by the public,
remains private. If owners of private vehicles and other
properties are allowed to express their political ideas and
opinion by posting election campaign materials on their
properties, there is no cogent reason to deny the same
preferred right to owners of PUVs and transport
terminals. In terms of ownership, the distinction between
owners of PUVs and transport terminals and owners of
private vehicles and properties is merely superficial.
Superficial differences do not make for a valid
classification.47
The fact that PUVs and transport terminals are made
available for use by the public is likewise not substantial
justification to set them apart from private vehicles and
other properties. Admittedly, any election campaign
material that would be posted on PUVs and transport
terminals would be seen by many people. However,
election campaign materials posted on private vehicles
and other places frequented by the public, e.g.,
commercial establishments, would also be seen by many
people. Thus, there is no reason to single out owners of
PUVs and transport terminals in the prohibition against
posting of election campaign materials.
Further, classifying owners of PUVs and transport
terminals apart from owners of private vehicles and other
properties bears no relation to the stated purpose of
Section 7(g) items (5) and (6) of Resolution No.
9615, i.e., to provide equal time, space and opportunity
to candidates in elections. To stress, PUVs and transport
terminals are private properties. Indeed, the nexus
between the restriction on the freedom of expression of
owners of PUVs and transport terminals and the
government's interest in ensuring equal time, space, and
opportunity for candidates in elections was not
established by the COMELEC.
WHEREFORE, in light of the foregoing disquisitions, the
instant petition is hereby GRANTED. Section 7(g) items
(5) and (6), in relation to Section 7(f), of Resolution No.
9615 issued by the Commission on Elections are hereby
declared NULL and VOID for being repugnant to
Sections 1 and 4, Article III of the 1987 Constitution.
SO ORDERED.
Sereno, C.J., Carpio, Brion, Peralta, Bersamin, Del
Castillo, Perez, Mendoza, Perlas-Bernabe, and Leonen,
JJ., concur.
Velasco, Jr., and Jardeleza, JJ., no part.
Leonardo-De Castro, and Villarama, Jr., JJ., on official
leave.

In sum, Section 7(g) items (5) and (6), in relation to

Section 7(f), of Resolution No. 9615 violate the free
speech clause; they are content-neutral regulations,
which are not within the constitutional power of the
COMELEC issue and are not necessary to further the
objective of ensuring equal time, space and opportunity
to the candidates. They are not only repugnant to the
free speech clause, but are also violative of the equal
protection clause, as there is
no substantial distinction between owners of PUVs and
transport terminals and owners of private vehicles and
other properties.

On a final note, it bears stressing that the freedom to

advertise one's political candidacy is clearly a significant
part of our freedom of expression. A restriction on this
freedom without rhyme or reason is a violation of the
most valuable feature of the democratic way of life.48
 EN BANC
G.R. No. 208062, April 07, 2015
SOCIAL WEATHER STATIONS, INC. AND PULSE
ASIA, INC., Petitioners, v. COMMISSION ON
ELECTIONS, Respondent.
DECISION
LEONEN, J.:
This resolves the Petition1 for certiorari and prohibition
under Rule 64, in relation to Rule 65, of the 1997 Rules
of Civil Procedure praying that respondent Commission
on Elections' Resolution No. 96742 dated April 23, 2013
be nullified and set aside and that the Commission on
Elections be permanently enjoined from enforcing the
same Resolution, as well as prosecuting Social Weather
Stations, Inc. and Pulse Asia, Inc. for violating it or
otherwise compelling compliance with it.3
Commission on Elections' (COMELEC) Resolution No.
9674 directed Social Weather Stations, Inc. (SWS) and
Pulse Asia, Inc. (Pulse Asia), as well as "other survey
firms of similar circumstance"4 to submit to COMELEC the
names of all commissioners and payors of all surveys
published from February 12, 2013 to April 23, 2013,
including those of their "subscribers."5
SWS and Pulse Asia are social research and public polling
firms. Among their activities is the conduct of pre-
election surveys.6
As recounted by SWS and Pulse Asia, on February 15 to
February 17, 2013, SWS conducted a pre-election survey
on voters' preferences for senatorial candidates.
Thereafter, it published its findings.7 The following
question was asked in the survey:
Kung ang eleksyon ay gaganapin ngayon, sino ang
pinakamalamang ninyong iboboto bilang mga SENADOR
ng PILIPINAS? Narito ang listahan ng mga kandidato.
Paki-shade o itiman po ang naaangkop na oval katabi ng
pangalan hg mga taong pinakamalamang ninyong
iboboto. Maaari po kayong pumili ng hanggang
labindalawang (12) kandidato.
(LIST OF CANDIDATES OMITTED)
If the elections were held today, whom would you most
probably vote for as SENATORS of the
PHILIPPINES? Here is a list of candidates. Please shade
the oval beside the name of the persons you would most
likely vote for. You may choose up to twelve (12)
candidates.
(LIST OF CANDIDATES OMITTED)8 (Emphasis in the
original)
On March 20, 2013, Representative Tobias M. Tiangco
(Tiangco), Secretary-General of the United Nationalist
Alliance (UNA), wrote Atty. Esmeralda Ladra, Director of
COMELEC's Law Department.9 In his letter,10 Tiangco
asked COMELEC to "compel [SWS] to either comply with
the directive in the Fair Election Act and COMELEC
Resolution No. 9[6]1[5] and give the names or identities
of the subscribers who paid for the [pre-election survey
conducted from February 15 to February 17, 2013], or be
liable for the violation thereof, an act constitutive of an
election offense."11
Tiangco recounted that on February 28, 2013, he wrote
to SWS requesting, among others, that he "be furnished
the identity of persons who paid for the [pre-election
survey conducted from February 15 to February 17,
2013] as well as those who subscribed to it."12 Sometime
in March 2013, SWS supposedly replied to Tiangco,
"furnishing [him] with some particulars about the survey
but [without] disclosing] the identity of the persons who
commissioned or subscribed to the survey."13
Acting on Tiangco's letter and on the COMELEC Law
Department's recommendation, the COMELEC En Bane
issued the Order14 dated April 10, 2013 setting the
matter for hearing on April 16, 2013. The same Order
directed SWS to submit its Comment within three (3)
days of receipt.15 On April 12, 2013, Pulse Asia received
a letter from COMELEC "requesting its representative to
attend the COMELEC hearing on 16 April 2013."16
SWS and Pulse Asia recounted that during the hearing,
COMELEC Chairman Sixto S. Brillantes, Jr. (COMELEC
Chairman Brillantes) stated that the proceeding was
merely a clarificatory hearing and not a formal hearing or
an investigation.17
On April 23, 2013, COMELEC issued the assailed
Resolution No. 9674. The entire dispositive portion of this
Resolution reads:
WHEREFORE, premises considered, the Commis[s]ion
RESOLVED, as it hereby RESOLVES, to DIRECT the SWS,
Pulse Asia and other survey firms of similar circumstance
to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of
surveys published from February 12, 2013 to the date of
the promulgation of this Resolution for copying and
verification by the Commission. The submission shall
include the names of all "subscribers" of those published
surveys. Such information/data shall be for the exclusive
and confidential use of the Commission;
RESOLVED FURTHER, that all surveys published
subsequent to the promulgation of this Resolution must
be accompanied by all the information required in
Republic Act no. 9006, including the names of
commissioners, payors and subscribers.
This resolution shall take effect immediately after
publication.
A violation of these rules shall constitu[t]e an election
offense as provided in Republic Act no. 9006, or the Fair
Election Act.18 (Emphasis in the original)
As basis for Resolution No. 9674, COMELEC cited Article
IX-C, Section 2(1)19 of the 1987 Constitution and
Sections 5.1 to 5.320 of Republic Act No. 9006, otherwise
known as the Fair Election Act, as implemented by
COMELEC Resolution No. 9615.21
SWS and Pulse Asia alleged that following the issuance of
Resolution No. 9674 and as of their filing before this
court of the present Petition, they had not been furnished
copies of Resolution No. 9674.22 (They emphasized that
while a certified true copy of this Resolution was attached
to their Petition, this was a copy which they themselves
secured "for the purpose of complying.with the
requirement that Rule 65 petitions must be accompanied
by a certified true copy of the assailed order or
resolution[.]"23)
In the letter24 dated April 30, 2013, SWS and Pulse Asia
informed COMELEC Chairman Brillantes that they had not
received a copy of Resolution No. 9674. They also
articulated their view that Resolution No. 9674 was
tainted with irregularities, having been issued ultra
vires (i.e., in excess of what the Fair Election Act allows)
and in violation of the non-impairment of contracts
clause of the Constitution. They also expressed their
intention to bring the matter before this court on account
of these supposed irregularities. Thus, they requested
that COMELEC defer or hold in abeyance Resolution No.
9674's enforcement.25
On May 8, 2013, the COMELEC Law Department issued a
Notice26 to SWS (and also to Pulse Asia) directing it to
furnish COMELEC with a list of the names of all
"commissioners, subscribers, and payors of surveys
published from February 12, 2013 until April 23,
2013."27 SWS was warned that failure to comply with the
Notice shall constitute an election offense punishable
under the Omnibus Election Code.28
On July 1, 2013, COMELEC issued a Subpoena29 notifying
SWS and Pulse Asia that a Complaint "for violation of
Section 264[,] par. 1 and 2 of the Omnibus Election
Code30 in relation to R.A. 9006"31 was filed against them.
(This was docketed as E.O. Case No. 13-222). They were
also directed to appear and to submit their counter-
affidavits and other supporting documents at the hearing
set on August 6, 2013.32
SWS and Pulse Asia maintained that before receiving the
Subpoena, they were never informed that a criminal case
had been filed against them. They added that they were
never furnished copies of the relevant criminal
Complaint.33
On July 26, 2013, petitioners Social Weather Stations,
Inc. and Pulse Asia, Inc. filed the present Petition.34 They
assail Resolution No. 9674 as having been issued ultra
vires. They are of the position that Resolution No. 9674,
in requiring the submission of information on subscribers,
is in excess of what the Fair Election Act
requires.35 Likewise, they, assert that Resolution No.
9674 transgresses the Fair Election Act in making itself
executory immediately after publication.36 Moreover,
they claim that it violates the non-impairment of
contracts clause of the Constitution,37 and was enforced
in violation of their right to due process (as they were
charged with its violation despite not having been
properly served with copies of the complaint filed against
them).38 Petitioners pray for the issuance of a temporary
restraining order and/or writ of preliminary injunction in
the interim.39
In this court's July 30, 2013 Resolution,40 COMELEC was
required to file a Comment on the Petition. In the same
Resolution, this court issued a temporary restraining
order "enjoining the enforcement of COMELEC Resolution
No. 9674 with respect to submission of the names of
regular subscribers but not to the submission of (1) the
names of specific subscribers for the limited period of
February 12, 2013 to April 23, 2013 who have paid a
substantial amount of money for access to survey results
and privileged survey data; and (2) the names of all
commissioners and payors of surveys published within
the same period."41
On October 10, 2013, COMELEC filed its Comment.42 On
February 12, 2014, petitioners filed their Joint Reply.43
In this court's February 18, 2014 Resolution,44 the
present Petition was given due course, and the parties
were directed to file their memoranda. Petitioners
complied on May 16, 201445 and COMELEC on June 25,
2014.46
For resolution are the following issues:
First, whether Resolution No. 9674 is invalid in that it
requires the disclosure of the names of "subscribers" of
election surveys;
Second, whether the rights of petitioners to free speech
will be curtailed by the requirement to submit the names
of their subscribers;
Third, whether Resolution No. 9674, insofar as it compels
petitioners to submit the names of their subscribers,
violates the constitutional proscription against the
impairment of contracts (Article II, Section 10);
Fourth, whether at the time petitioners were required by
COMELEC to reveal the names of the subscribers to their
election surveys, Resolution No. 9674 was already in
force and effect; and
Lastly, whether COMELEC deprived petitioners of due
process of law when it:
a) failed to provide them with a copy of Resolution No.
9674 and the criminal complaint for an election offense;
and
b) refused to specify the election offense under which
they were being prosecuted.
We sustain the validity of Resolution No. 9674. The
names of those who commission or pay for election
surveys, including subscribers of survey firms, must be
disclosed pursuant to Section 5.2(a) of the Fair Election
Act. This requirement is a valid regulation in the exercise
of police power and effects the constitutional policy of
"guarantee[ing] equal access to opportunities for public
service[.]"47 Section 5.2(a)'s requirement of disclosing
subscribers neither curtails petitioners' free speech rights
nor violates the constitutional proscription against the
impairment of contracts.
However, it is evident that Resolution No. 9674 was
promulgated in violation of the period set by the Fair
Election Act. Petitioners were also not served a copy of
Resolution No. 9674 with which they were asked to
comply. They were neither shown nor served copies of
the criminal Complaint subject of E.O. Case No. 13-222.
Petitioners' right to due process was, thus, violated.
Petitioners assail Resolution No. 9674's requirement of
submission of names of subscribers, including those who
did not commission or pay for a specific survey or cause
its publication, for being ultra vires. They maintain that
the Fair Election Act "as it was written by Congress
covers only those who commission or pay for a particular
election survey, and requires disclosure of their names
only when that particular survey is published."48 From
this, they add that COMELEC exceeded its authority —
"creating] an election offense where there was none
before"49 — in considering as an election offense any
violation of Resolution No. 9674.
COMELEC, for its part, insists on the "wide latitude of
discretion"50 granted to it in the performance of its
constitutional duty to "[e]nforce and administer all laws
and regulations relative to the conduct of an
election[.]"51 It adds that "as the specialized
constitutional body charged with the enforcement and
administration of election laws,"52 its contemporaneous
construction of Section 5.2(a) of the Fair Election Act is
"entitled to great weight and respect."53 Citing the
supposed legislative intent of Section 5.2 as
"broaden[ing] the subject of disclosure,"54 COMELEC
claims that Section 5.2(a) "draws no distinction between
the direct payors and the indirect payors of the
survey."55 It adds that requiring the disclosure of survey
subscribers addresses the requirement of reporting
election expenditures by candidates and political parties,
thereby helping COMELEC check compliance with this
requirement.56
Section 5.2(a) of the Fair Election Act, read in a manner
consistent not only with its text but also with the purpose
for which it, along with the Fair Election Act, was
adopted, sustains COMELEC's position.
Republic Act No. 9006 was adopted with the end in mind
of "guarantee[ing] or ensuring] equal opportunity for
public service"57 and to this end, stipulates mechanisms
for the "supervision] or regulation of] the enjoyment or
utilization of all franchises or permits for the operation of
media of communication or information[.]"58 Hence, its
short title: Fair Election Act.
Situated within the constitutional order, the Fair Election
Act provides means to realize the policy articulated in
Article II, Section 26 of the 1987 Constitution to
"guarantee equal access to opportunities for public
service[.]" Article II, Section 26 models an understanding
of Philippine political and electoral reality. It is not merely
hortatory or a statement of value. Among others, it sums
up an aversion to the perpetuation of political power
through electoral contests skewed in favor of those with
resources to dominate the deliberative space in any
media.
Apart from making real Article II, Section 26's
constitutional policy, the Fair Election Act represents the
legislature's compliance with the requirement of Article
XIII, Section 1: "Congress . . . give[s] highest priority to
the enactment of measures that. . . reduce . . . political
inequalities ... by equitably diffusing wealth and political
power for the common good."59
Moreover, the constitutional desire to "guarantee equal
access to opportunities for public service"60 is the same
intent that animates the Constitution's investiture in
COMELEC of the power to "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."61
Specific provisions in the Fair Election Act regulate the
means through which candidates for elective public
office, as well as political parties and groups participating
in the party-list system, are able to make themselves
known to voters, the same means through which they
earn votes.
Section 3 permits the use of lawful election
propaganda.62 Section 4 regulates published or printed,
and broadcast election propaganda.63 Section 6 governs
access to media time and space.64 Sections 7 and 8
provide for COMELEC's competencies (i.e., affirmative
action, and the so-called "COMELEC Space" and
"COMELEC Time") that enable it to equalize candidates'
exposure to voters.65 Section 9 regulates venues for the
posting of campaign materials.66 Section 10 provides for
parties' and candidates' right to reply.67 Section 11
requires media outlets to make available the use of their
facilities for election propaganda at discounted rates.68
The Fair Election Act also governs published surveys
during elections.
Section 5.1 defines election surveys-as "the
measurement of opinions and perceptions of the voters
as regards a candidate's popularity, qualifications,
platforms or a matter of public discussion in relation to
the election, including voters' preference for candidates
or publicly discussed issues during the campaign
period[.]" Sections 5.2 and 5.3 provide regulations that
facilitate transparency with respect to ' election surveys.
Section 5.469 is no longer in effect, having been declared
unconstitutional in this court's May 5, 2001 Decision
in Social Weather Stations and Kamahalan Publishing
Corp. v. COMELEC.70 Section 5.571 pertains to exit polls.
Section 5.2 enumerates the information that a person
publishing an election survey must publish along with the
survey itself:
5.2 During the election period, any person, natural as
well as juridical, candidate or organization who publishes
a survey must likewise publish the following
information:chanroblesvirtuallawlibrary
a. The name of the person, candidate, party or.
organization who commissioned or paid for the
survey;
b. The name of the person, polling firm or survey
organization who conducted the survey;
c. The period during which the survey was
conducted, the methodology used, including the
number of individual respondents and the areas
from which they were selected, and the specific
questions asked;
d. The margin of error of the survey;
e. For each question for which the margin of error is
greater than that reported under paragraph (d),
the margin of error for that question; and
f. A mailing address and telephone number,
indicating it as an address or telephone number at
which the sponsor can be contacted to obtain a
written report regarding the survey in accordance
with Subsection 5.3. (Emphasis supplied)
Section 5.3 facilitates the inspection, copying, and
verification not only of an election survey but also of the
raw data used as bases for its conclusions:
5.3 The survey together with raw data gathered to
support its conclusions shall be available for inspection,
copying and verification by the COMELEC or by a
registered political party or a bona fide candidate, or by
any COMELEC-accredited citizen's arm. A reasonable fee
sufficient to cover the costs of inspection, copying and
verification may be charged.
As with all the other provisions of the Fair Election Act,
Section 5 is a means to guarantee equal access to the
deliberative forums essential to win an elective public
office. Any reading of Section 5 and of its individual
components, such as Section 5.2(a), cannot be divorced
from this purpose.

The inclusion of election surveys in the list of items
regulated by the Fair Election Act is a recognition that
election surveys are not a mere descriptive aggregation
of data. Publishing surveys are a means to shape the
preference of voters, inform the strategy of campaign
machineries, and ultimately, affect the outcome of
elections. Election surveys have a similar nature as
election propaganda. They are expensive, normally paid
for by those interested in the outcome of elections, and
have tremendous consequences on election results.
II
Views vary on the precise extent to which surveys or
"polls" shape voter preferences, if at all.
Election surveys have been critiqued for amplifying the
notion of an election as a "horse race"72 and for reducing
elections to the lowest common denominator of
percentage points or a candidate's erstwhile share in the
vote market rather than focusing on issues, principles,
programs, and platforms.
Several possible, albeit conflicting, effects of surveys on
voter behavior have been postulated:
First, there is the bandwagon effect where "electors
rally to support the candidate leading in the polls."73 This
"assumes that knowledge of a popular 'tide' will likely
change voting intentions in [favor] of the frontrunner,
that many electors feel more comfortable supporting a
popular choice or that people accept the perceived
collective wisdom of others as being enough reason for
supporting a candidate."74
Second, there is the underdog effect where "electors
rally to support the candidate trailing in the polls."75 This
shift can be motivated by sympathy for the perceived
underdog.76
Third, there is the motivating effect where "individuals
who had not intended to vote are persuaded to do
so,"77 having been alerted to the fact of an election's
imminence.78
Fourth, there is also the demotivating effect where
"voters abstain from voting out of certainty that their
candidate or party will win[.]"79
Fifth, there are reports of a behavior known as strategic
voting where "voting is influenced by the chances of
winning[.]"80
Lastly, there is also the theory of a free-will
effect where "voters cast their ballots to prove the polls
wrong[.]"81
Election surveys published during election periods create
the "politics of expectations."82 Voters act in accordance
with what is perceived to be an existing or emerging
state of affairs with respect to how candidates are faring.
Of the six (6) effects, the bandwagon effect has a
particular resonance and has been of concern. Surveys,
or opinion polls, "by directly influencing individual-level
support . . . , can be self-fulfilling prophecies and
produce opinion cascades."83 "[A] poll's prediction may
come to pass not only because it measures public opinion
but also because it may influence public opinion."84
The bandwagon effect is of particular concern because of
the observed human tendency to conform. Three (3)
mechanisms through which survey results may induce
conformity have been posited:
(1) normative social influence, or people's desire to adopt
the majority position in order to feel liked and accepted
or believe they are on the winning team;
(2) informational social influence, or people learning from
the 'wisdom of crowds' via social proof because they
'believe that others' interpretation of an ambiguous
situation is more accurate . . . and will help [them]
choose an appropriate course of action'; and
(3) people resolving cognitive dissonance by switching to
the side they infer is going to win based on the poll.85
cralawlawlibrary
Likewise, it has been argued that the bandwagon effect is
but the obverse of the so-called false-consensus effect or
false-consensus bias:
The bandwagon effect, a form of conformity, is the mirror
image of the false consensus effect, where people
misperceive that their own behaviors and attitudes are
more popular than they actually are. In the political
domain, one mechanism underlying the false consensus
effect is wishful thinking - people gaining utility from
thinking their candidate is ahead or their opinions are
popular.86
The bandwagon effect induced by election surveys
assumes even greater significance in considering the
health of a democracy.
Integral to our appreciation of democracy is the
recognition that democracy is fundamentally deliberative.
It is rooted in the exchange and dialogue of ideas.
Accordingly, free expression, not least of all from the
minority and from those who do not conform, i.e., those
who dissent and criticize, is indispensable:
Proponents of the political theory on "deliberative
democracy" submit that "substantial, open, [and] ethical
dialogue is a critical, and indeed defining, feature of a
good polity." This theory may be considered broad, but it
definitely "includes [a] collective decision making with
the participation of all who will be affected by the
decision." It anchors on the principle that the cornerstone
of every democracy is that sovereignty resides in the
people. 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 public affairs, 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."
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." 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."87 cralawlawlibrary
However, "conformity pressures can suppress minority
opinion."88 The bandwagon effect conjures images of an
impregnable majority, thereby tending to push farther
toward the peripheries those who are already
marginalized. Worse, the bandwagon effect foments the
illusion of a homogenous monolith denying the very
existence of those in the minority. This undermines the
"normative conceptions of democracy"89 substituting the
democratic dialogue with acquiescence to perceived or
projected orthodoxy.
Surveys, far from being a passive "snapshot of many
viewpoints held by a segment of the population at a
given time,"90 can warp existing public opinion and can
mould public opinion. They are constitutive. Published
election surveys offer valuable insight into public opinion
not just because they represent it but more so because
they also tend to make it.
Appreciating this tendency to both entrench and
marginalize is of acute relevance in the context of
Philippine political reality. This is the same reality that
our policymakers, primarily the framers of the
Constitution, have seen fit to address.
III
The constitutional dictum to "guarantee equal access to
opportunities for public service"91 and (even more
specifically and explicitly) to "prohibit political
dynasties"92 does not exist in a vacuum.
Politics in the Philippines has been criticized as "a
lucrative means of self-aggrandizement."93 Ours is an
exclusive system that perpetuates power and provides
sanctuary to those who have already secured their place.
Traditional Filipino politics connotes elite families that,
with the state, are "engaged in a reciprocal relationship
that constantly defines and redefines both."94 As
recounted by Alfred McCoy, this reciprocal relationship,
typified by rent-seeking (i.e., "taking advantage of their
access to state privileges to expand proprietary
wealth"95), is a vicious cycle propagated for as long as
the Philippines has been a republic: "The emergence of
the Republic as a weak postcolonial state augmented the
power of rent-seeking political families — a development
that further weakened the state's own resources."96
The Philippines, as it emerged in the wake of Ferdinand
Marcos' presidency and the adoption of the 1987
Constitution, saw the "celebritification"97 of political
office. On the legislature and studying emerging
contrasts in the composition of its two chambers — the
Senate and the House of Representatives — it has been
noted:
The old political families, however are not as strong in
the Senate as they are in the House. This could be read,
if not as a total repudiation by voters of family power,
then at least as an attempt by them to tap other sources
of national leadership. Celebrities and military and police
officers have emerged as alternatives to traditional
politicians. It could be that these new men and women
have captured the popular imagination or that they are
more in tune with the public pulse. But their emergence
could very well be seen as an indication of the paucity of
choices: Political parties, for one, have not succeeded in
proffering a wider range of options to an electorate
weary of trapos.98
This celebritification nurtures misleading notions of an
enhanced or healthier democracy, one that opens
avenues to a crop of political leaders not belonging to
oligarchic families. Viewed critically however, this is
nothing more than a pipe dream. New elites now share
the political stage with the old. The tension between two
contrary tendencies actually serves to preserve the
status quo of elitism — an expanded elitism perhaps, but
elitism no less. To evoke a truism, "the more things
change, the more they stay the same":
But the "celebritification" of the Senate can also be
interpreted as the democratization of an exclusive body
once reserved only for the very rich, the politically
experienced, and the intellectually brilliant. In a sense,
the bar of entry has been lowered, and anyone with
national renown can contest a seat in a chamber once
famous for sharp debates and polysyllabic peroration.
The main criterion for a Senate seat is now name
recall. This is where celebrities have the edge even over
older political families with bankable names. . . .
....
The diminishing clout of old families in the Senate—and
their continued dominance in the House—shows the push
and pull of two contrary tendencies. The first tendency is
toward the new: The importance of name recall in
national elections taking place in a media-inundated
environment makes it easier for movie and media
personalities, and harder for old-style politicians, to be
elected. The second tendency is veering toward the old:
At the district level, trapo-style patronage and machine
politics remain deeply entrenched, giving political families
the edge in elections."99
Thus, where once there was elitism solely along lines of
kinship — Alfred McCoy's so-called "anarchy of families"
— now there is also elitism demarcated by name recall,
populist projection, and media exposure, arguably, an
"anarchy of celebrities."
Certainly, it is not the business of this court to engage in
its own determination of the wisdom of policy.
Nevertheless, having to grapple with the tasks of
adjudication and interpretation, it has become necessary
to bring to light the intent that underlies the disputed
statutory provision, as well as the constitutional regime
and social context, in which this provision is situated.
To reiterate, the inclusion of published election surveys in
a statute that regulates election propaganda and other
means through which candidates may shape voter
preferences is itself telling of the recognition that
published election surveys, too, may influence voter
preferences. This inclusion is similarly telling of a
recognition that, left unregulated, election surveys can
undermine the purposes of ensuring "fair" elections.
These recognitions are embedded in the Fair Election Act;
they are not judicial constructs. In adjudicating with
these' as bases, this court is merely adhering to the
legislative imperative.
IV
It is necessary that the Fair Election Act be appreciated
for what it is: a mechanism for ensuring equality. The
Fair Election Act is a means to effect the "necessary
condition" to a genuine democratic dialogue, to realizing
a deliberative democracy. The concept of this "necessary
condition" was previously considered by this court
in Diocese of Bacolod v. COMELEC:100
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 "protecting] the already established
machinery of discrimination." 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.
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 selfi-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.
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'."
He submits that "[different 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."
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." 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."101
What is involved here is petitioners' freedom of speech
and of expression, that is, to publish their findings. More
specifically, what is involved here is their right to political
speech, that which "refers to speech 'both intended and
received as a contribution to public deliberation about
some issue,' 'foster[ing] informed and civic-minded
deliberation."102
The nature of the speech involved, as well as the Fair
Election Act's purpose of ensuring political equality, calls
into operation the equality-based approach to
weighing liberty to express vis-a-vis equality of
opportunities. As explained in Diocese of Bacolod:103
In an equality-based approach, "politically disadvantaged
speech prevails over regulation[,] but regulation
promoting political equality prevails over speech." 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. 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 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.104
The required judicial temperament in appraising speech
in the context of electoral campaigns which is principally
designed to endorse a candidate, both by candidates and
/ or political parties, on the one hand, and private
citizens, on the other, has thus been articulated:
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 to an
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 on the basis of its
content. For this purpose, it will not matter whether the
speech is made with or on private property.105 [Emphasis
in the original]
V who "commissioned" from those who "paid for" and
Concededly, what is involved here is not election
propaganda per se. Election surveys, on their face, do
not state or allude to preferred candidates. As a means,
election surveys are ambivalent. To an academician, they
are an aggrupation of data. To a journalist, they are
matters for reportage. To a historian, they form part of a
chronicle. Election surveys thus become unambiguous
only when viewed in relation to the end for which they
are employed. To those whose end is to get a candidate
elected, election surveys, when limited to their own
private consumption, are a means to formulate
strategy. When published, however, the tendency to
shape voter preferences comes into play. In this respect,
published election surveys partake of the nature of
election propaganda. It is then declarative speech in the
context of an electoral campaign properly subject to
regulation. Hence, Section 5.2 of the Fair Election Act's
regulation of published surveys.
We thus proceed to evaluate Resolution No. 9674's
requirement of disclosing the names of subscribers to
election surveys in light of the requisites for valid
regulation of declarative speech by private entities in the
context of an election campaign:
First, the text of Section 5.2(a) of the Fair Election Act
supports the inclusion of subscribers among those
persons who "paid for the survey[.]"106 Thus, Resolution
No. 9674 is a regulation finding basis in statute.
COMELEC correctly points out that in Section 5.2(a) of
the Fair Election Act, those who "commissioned" and
those who "paid for" the published survey are separated
by the disjunctive term "or."107 This disassociates those
identifies them as alternatives to each other.108 Section
5.2(a) thus requires the disclosure of two (2) classes of
persons: "[first,] those who commissioned or sponsored
the survey; and [second,] those who paid for the
survey."109
The second class makes no distinction between those
who pay for a specific survey and those who pay for
election surveys in general. Indeed, subscribers do not
escape the burden of paying for the component articles
comprising a subscription. They may pay for them in
aggregate, but they pay for them just the same. From
the text of Section 5.2(a), the legislative intent or
regulatory concern is clear: "those who have financed,
one way or another, the [published] survey"110 must be
disclosed.
Second, not only an important or substantial state
interest but even a compelling one reasonably grounds
Resolution No. 9674's inclusion of subscribers to election
surveys. Thus, regardless of whether an intermediate or
a strict standard is used, Resolution No. 9674 passes
scrutiny.
It is settled that constitutionally declared principles are a
compelling state interest:
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,
constitute a substantial and compelling government
interest in regulating . . . utterances in TV broadcast."111
Here, we have established that the regulation of election
surveys effects the constitutional policy, articulated in
Article II, Section 26, and reiterated and affirmed in
Article IX-C, Section 4 and Article XIII, Section 26 of the
1987 Constitution, of "guarantee[ing] equal access to
opportunities for public service[.]"112
Resolution No. 9674 addresses the reality that an
election survey is formative as it is descriptive. It can be
a means to shape the preference of voters and, thus, the
outcome of elections. In the hands of those whose end is
to get a candidate elected, it is a means for such end and
partakes of the nature of election propaganda.
Accordingly, the imperative of "fair" elections impels their
regulation.
Lastly, Resolution No. 9674 is "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"113 and is
"demonstrably the least restrictive means to achieve that
object."114
While it does regulate expression (i.e., petitioners'
publication of election surveys), it does not go so far as
to suppress desired expression. There is neither
prohibition nor censorship specifically aimed at election
surveys. The freedom to publish election surveys
remains. All Resolution No. 9674 does is articulate a
regulation as regards the manner of publication, that is,
that the disclosure of those who commissioned and/or
paid for, including those subscribed to, published election
surveys must be made. cralawlawlibrary
VI
Petitioners harp on what they claim to be Section 5.2(a)'s
"plain meaning" and assert that there is no room to
entertain COMELEC's construction of Section 5.2(a).115
It has been said that "[a] cardinal rule in statutory
construction is that when the law is clear and free from
any doubt or ambiguity, there is no room for construction
or interpretation. There is only room for application."116
Clarifications, however, are in order.
First, verba legis or the so-called plain-meaning rule
applies only when the law is completely clear, such that
there is absolutely no room for interpretation. Its
application is premised on a situation where the words of
the legislature are clear that its intention, insofar as the
facts of a case demand from the point of view of a
contemporary interpretative community, is neither vague
nor ambiguous. This is a matter of judicial appreciation.
It cannot apply merely on a party's contention of
supposed clarity and lack of room for interpretation.
This is descriptive of the situation here.
Interestingly, both COMELEC and petitioners appeal to
what they (respectively) construe to be plainly evident
from Section 5.2(a)'s text: on the part of COMELEC, that
the use of the words "paid for" evinces no distinction
between direct purchasers and those who purchase via
subscription schemes; and, on the part of petitioners,
that Section 5.2(a)'s desistance from actually using the
word "subscriber" means that subscribers are beyond its
contemplation.117 The variance in the parties' positions,
considering that they are both banking on what they
claim to be the Fair Election Act's plain meaning, is the
best evidence of an extant ambiguity.
Second, statutory construction cannot lend itself to
pedantic rigor that foments absurdity. The dangers of
inordinate insistence on literal interpretation are
commonsensical and need not be belabored. These
dangers are by no means endemic to legal interpretation.
Even in everyday conversations, misplaced literal
interpretations are fodder for humor. A fixation on
technical rules of grammar is no less innocuous. A
pompously doctrinaire' approach to text can stifle, rather
than facilitate, the legislative wisdom that unbridled
textualism purports to bolster.118
Third, the assumption that there is, in all cases, a
universal plain language is erroneous. In reality,
universality and uniformity of meaning is a rarity. A
contrary belief wrongly assumes that language is static.
The more appropriate and more effective approach is,
thus, holistic rather than parochial: to consider context
and the interplay of the historical, the contemporary, and
even the envisioned. Judicial interpretation entails the
convergence of social realities and social ideals. The
latter are meant to be effected by the legal apparatus,
chief of which is the bedrock of the prevailing legal order:
the Constitution. Indeed, the word in the vernacular that
describes the Constitution — saligan — demonstrates this
imperative of constitutional primacy.
Thus, we refuse to read Section 5.2(a) of the Fair
Election Act in isolation. Here, we consider not an
abstruse provision but a stipulation that is part of the
whole, i.e., the statute of which it is a part, that is aimed
at realizing the ideal of fair elections. We consider not a
cloistered provision but a norm that should have a
present authoritative effect to achieve the ideals of those
who currently read, depend on, and demand fealty from
the Constitution.cralawlawlibrary
VII
We note with favor COMELEC's emphasis on the "wide
latitude of discretion"119 granted to it in the performance
of its constitutional duty to "[e]nforce and administer all
laws arid regulations relative to the conduct of an
election[.]"120 But this is with the caution that it does not
reach "grave abuse of discretion[.]121
Alliance for Nationalism and Democracy v.
COMELEC122 had the following to say regarding factual
findings made by COMELEC, an independent
constitutional organ:
[T]he rule that factual findings of administrative bodies
will not be disturbed by courts of justice except when
there is absolutely no evidence or no substantial
evidence in support of such findings should be applied
with greater force when it concerns the COMELEC, as the
framers of the Constitution intended to place the
COMELEC—created and explicitly made independent by
the Constitution itself—on a level higher than statutory
administrative organs.123
Proceeding from this, we emphasize that this norm of
deference applies not only to factual findings. This
applies with equal force to independent constitutional
organs' general exercise of their functions. The
constitutional placing of independent constitutional
organs on a plane higher than those of administrative
agencies created only by statute is not restricted to
competence in fact-finding. It extends to all purposes for
which the Constitution created them.
We reiterate, however, that our recognition of this
deferential norm is made with caution. This rule of
deference does not give independent constitutional
organs, like COMELEC, license to gravely abuse their
discretion. With respect to rule-making, while the wisdom
of "subordinate legislation" or the rule-making power of
agencies tasked with the administration of government is
acknowledged, rule-making agencies are not given
unfettered power to promulgate rules. As explained
in Gerochi v. Department of Energy,124 it is imperative
that subordinate legislation "be germane to the objects
and purposes of the law and that the regulation be not in
contradiction to, but in conformity with, the standards
prescribed by the law."125 A regulation that purports to
effect a statute but goes beyond the bounds of that
statute is ultra vires; it is in excess of the rule-making
agency's competence. Thus, it is void and ineffectual.
This is not the case here. There is no grave abuse of
discretion. Resolution No. 9674 serves a constitutional
purpose and works well within the bounds of the
Constitution and of statute.cralawlawlibrary
VIII
Petitioners argue that Resolution No. 9674 constitutes a
prior restraint in that:
Resolution No. 9674 makes it an election offense for a
survey firm not to disclose the names of subscribers who
have paid substantial amounts to them, even if ihe
survey portions provided to them have not been
published. 1'his requirement is unduly burdensome and
onerous and constitutes a prior restraint on the right of
survey firms to gather information on public opinion and
disseminate it to the citizenry.
. . . If Resolution No. 9674 is allowed to stand, survey
firms will no longer be able to operate because they will
not have enough clients and will not be financially
sustainable. COMELEC will finally be able to do indirectly
what it could not do directly, which is to prohibit the
conduct of election surveys and the publication or
dissemination of the results to the public.126
Petitioners' assertions are erroneous.
Chavez v. Gonzales127 explained the concept of prior
restraint as follows:
Prior restraint refers to official governmental restrictions
on the press or other forms of expression in advance of
actual publication or dissemination. Freedom from prior
restraint is largely freedom from government censorship
of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive,
legislative or judicial branch of the government. Thus, it
precludes governmental acts that required approval of a
proposal to publish; licensing or permits as prerequisites
to publication including the payment of license taxes for
the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing
offices of certain newspapers, resulting in the
discontinuation of their printing and publication, are
deemed as previous restraint or censorship. Any law or
official that requires some form of permission to be had
before publication can be made, commits an infringement
of the constitutional right, and remedy can be had at the
courts.128 (Emphasis supplied, citations omitted)
The very definition of "prior restraint" negates
petitioner's assertions. Resolution No. 9674 poses no
prohibition or censorship specifically aimed at election
surveys. Apart from regulating the manner of publication,
petitioners remain free to publish election surveys.
COMELEC correctly points out that "[t]he disclosure
requirement kicks in only upon, not prior
to, publication."129
In any case, the requirement of disclosing subscribers is
neither unduly burdensome nor onerous. Prior to the
promulgation of Resolution No. 9674, survey firms were
already understood to be bound by the requirement to
disclose those who commissioned or paid for published
election surveys. Petitioners have been complying with
this without incident since the Fair Election Act was
enacted in 2001. After more than a decade of
compliance, it is odd for petitioners to suddenly assail the
disclosure requirement as unduly burdensome or
onerous.
Petitioners' claim that "[i]f Resolution No. 9674 is allowed
to stand, survey firms will no longer be able to operate
because they will not have enough clients and will not be
financially sustainable"130 is too speculative and
conjectural to warrant our consideration. The assumption
is that persons who want to avail of election survey
results will automatically be dissuaded from doing so
when there is a requirement of submission of their
names during the campaign period. This is neither self-
evident, nor a presumption that is susceptible to judicial
notice. There is no evidence to establish a causal
connection.
Petitioners' free speech rights must be weighed in
relation to the Fair Election Act's purpose of ensuring
political equality and, therefore, the speech of others who
want to participate unencumbered in our political spaces.
On one hand, there are petitioners' right to publish and
publications which are attended by the interests of those
who can employ published data to their partisan ends.
On the other, there is regulation that may effect equality
and, thus, strengthen the capacity of those on society's
margins or those who grope for resources to engage in
the democratic dialogue. The latter fosters the ideals of
deliberative democracy. It does not trump the former;
rather, it provides the environment where the survey
group's free speech rights should reside. cralawlawlibrary
 IX
Petitioners argue that Resolution No. 9674 violates
Article III, Section 10 of the 1987 Constitution.131 They
claim that it "unduly interferes with [their] existing
contracts . . . by forcing [them] to disclose information
that, under the contracts, is confidential or privileged."132
For its part, COMELEC argues that "[t]he non-impairment
clause of the Constitution must yield to the loftier
purposes sought to be achieved by the
government."133 It adds that "[petitioners' existing
contracts with third parties must be understood to have
been made in reference to the possible exercise of the
COMELEC's regulatory powers."134
It is settled that "the constitutional guaranty of non-
impairment... is limited by the exercise of the police
power of the State, in the interest of public health,
safety, morals and general welfare."135 "It is a basic rule
in contracts that the law is deemed written into the
contract between the parties."136 The incorporation of
regulations into contracts is "a postulate of the police
power of the State."137
The relation of the state's police power to the principle of
non-impairment of contracts was thoroughly explained
in Ortigas and Co. V. Feati Bank:138
[W]hile non-impairment of contracts is constitutionally
guaranteed, the rule is not absolute, since it has to be
reconciled with the legitimate exercise of police
power, i.e., "the power to prescribe regulations to
promote the health, morals, peace, education, good
order or safety and general welfare of the people."
Invariably described as "the most essential, insistent,
and illimitable of powers" and "in a sense, the greatest
and most powerful attribute of government," the exercise
of the power may be judicially inquired into and corrected
only if it is capricious, whimsical, unjust or unreasonable,
there having been a denial of due process or a violation
of any other applicable constitutional guarantee. As this
Court held through Justice Jose P. Bengzon in Philippine
Long Distance Company vs. City of Davao, et al. police
power "is elastic and must be responsive to various social
conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions;
it must follow the legal progress of a democratic way of
life." We were even more emphatic in Vda. de Genuino
vs. The Court of Agrarian Relations, et al, when We
declared: "We do not see why public welfare when
clashing with the individual right to property should not
be made to prevail through the state's exercise of its
police power."139 (Citations omitted)
This case does not involve a "capricious, whimsical,
unjust or unreasonable"140 regulation. We have
demonstrated that not only an important or substantial
state interest, but even a compelling one anchors
Resolution No. 9674's requirement of disclosing
subscribers to election surveys. It effects the
constitutional policy of "guarantee[ing] equal access to
opportunities for public service"141 and is impelled by the
imperative of "fair" elections.
As a valid exercise of COMELEC's regulatory powers,
Resolution No. 9674 is correctly deemed written into
petitioners' existing contracts.
Parenthetically, the obligations of agreements manifested
in the concept of contracts are creations of law. This right
to demand performance not only involves its requisites,
privileges, and regulation in the Civil Code or special
laws, but is also subject to the Constitution. The
expectations inherent in a contract may be compelling,
but so are the normative frameworks demanded by law
and the provisions of the Constitution.cralawlawlibrary
X candidates and the mass media entities the rules and
Petitioners point out that Section 13 of the Fair Election
Act provides that "[r]ules and regulations promulgated
by the COMELEC under and by authority of this
Section shall take effect on the seventh day after their
publication in at least two (2) daily newspapers of
general circulation." In contrast, Resolution No. 9674
provides that it "shall take effect immediately after
publication."142 Thus, they assert that Resolution No.
9674's effectivity clause is invalid. From this, they argue
that Resolution No. 9674 has not taken effect and cannot
be enforced against them or against other persons.143
COMELEC counters that Section 13 of the Fair Election
Act's provision that rules shall take effect "on the seventh
day after their publication" applies only to Resolution No.
9615, the Implementing Rules and Regulations (IRR) of
the Fair Election Act, and not to Resolution No. 9674,
which "merely enforces Section 26144 of Resolution No.
9615."145
Noting that Resolution No. 9674 was nevertheless
published in the Philippine Daily Inquirer and the
Philippine Star both on April 25, 2013, COMELEC adds
that, in any case, "the lapse of the seven-day period
from the date of its publication has rendered the instant
issue moot and academic."146
It is COMELEC which is in error on this score. Section 13
of the Fair Election Act reads:
Section 13. Authority of the COMELEC to Promulgate
Rules; Election Offenses. - The COMELEC shall
promulgate and furnish all political parties and
regulations for the implementation of this Act, consistent
with the criteria established in Article IX-C, Section 4 of
the Constitution and Section 86 of the Omnibus Election
Code (Batas Pambansa Bldg. 881).
Rules and regulations promulgated by the COMELEC
under and by authority of this Section shall take effect on
the seventh day after their publication in at least two (2)
daily newspapers of general circulation. Prior to
effectivity of said rules and regulations, no political
advertisement or propaganda for or against any
candidate or political party shall be published or
broadcast through mass media.
Violation of this Act and the rules and regulations of the
COMELEC issued to implement this Act shall be an
election offense punishable under the first and second
paragraphs of Section 264 of the Omnibus Election Code
(Batas Pambansa Bldg. 881). (Emphasis supplied)
Resolution No. 9615 is denominated "Rules and
Regulations Implementing Republic Act No. 9006,
otherwise known as the 'Fair Election Act', in connection
to [sic] the 13 May 2013 National and Local Elections,
and Subsequent Elections[.]"
The only conceivable reason that would lead COMELEC to
the conclusion that it is only Resolution No. 9615 (and
not the assailed Resolution No. 9674) that needs to
comply with the requirement of Section 13 of the Fair
Election Act is Section 13's use of the phrase "rules and
regulations for the implementation of this Act[.]" That is,
since Resolution No. 9615 is the Resolution which, by
name, is called the "Rules and Regulations Implementing
Republic Act No. 9006," COMELEC seems to think that
other rules named differently need not comply.
It is an error to insist on this literal reasoning.
Section 13 applies to all rules and regulations
implementing the Fair Election Act, regardless of how
they are denominated or called. COMELEC's further
reasoning that what Resolution No. 9674 intends to
implement is Resolution No. 9615 and not the Fair
Election Act itself is nothing but a circuitous denial of
Resolution No. 9674's true nature. COMELEC's reasoning
is its own admission that the assailed Resolution
supplements what the Implementing Rules and
Regulations of the Fair Election Act provides. Ultimately,
Resolution No. 9674 also implements the Fair Election
Act and must, thus, comply with the requirements of its
Section 13.
Accordingly, Resolution No. 9674 could not have become
effective as soon as it was published in the Philippine
Daily Inquirer and the Philippine Star on April 25, 2013.
Taking into consideration the seven-day period required
by Section 13, the soonest that it could have come into
effect was on May 2, 2013.
This notwithstanding, petitioners were not bound to
comply with the requirement "to submit within three (3)
days from receipt of this Resolution the names of all
commissioners and payors of surveys published from
February 12, 2013 to the date of the promulgation of this
Resolution[.]"147 As shall be discussed, COMELEC's
(continuing) failure to serve copies of Resolution No.
9674 on petitioners prevented this three-day period from
even commencing. cralawlawlibrary
XI
Petitioners point out that they were never served copies
of Resolution No. 9674. Thus, they claim that this
Resolution's self-stated three-day period within which
they must comply has not begun to run and that
COMELEC's insistence on their compliance violates their
right to due process. They add that COMELEC has also
failed to provide them with copies of the criminal
complaint subject of E.O. Case No. 13-222 for which the
Subpoena dated July 1, 2013 was issued against them.
COMELEC, however, insists that "[petitioners were given
fair notice of the Resolution"148 in that:
[t]he-Notice dated 08 May 2013 sent to and received by
petitioners not only makes reference to the Resolution by
its number and title but also indicates its date of
promulgation, the two newspapers of general circulation
in which it was published, it date of publication, and,
more important [sic], reproduces in full its dispositive
portion[.]149
COMELEC adds that, in any case, petitioners were "able
to secure a certified true copy of the [assailed]
Resolution."150 On the filing of a criminal complaint,
COMELEC asserts that attached to the Subpoena served
on petitioners was a copy of Resolution No. 13-0739 of
the COMELEC En Bane which "provides a verbatim
reproduction of the Memorandum of the Director of the
Law Department detailing petitioners' failure to comply
with the assailed Resolution and of the Memorandum of
Commissioner [Christian Robert S.] Lim submitting the
matter for the appropriate action of the COMELEC en
bane."151
COMELEC relies on infirm reasoning and reveals how, in
criminally charging petitioners, it acted arbitrarily,
whimsically, and capriciously, and violated petitioners'
right to due process.
By its own reasoning, COMELEC admits that petitioners
were never actually served copies of Resolution No.
9674 after it was promulgated on April 23, 2013. It
insists, however, that this flaw has been remedied by
service to petitioners of the May 8, 2013 Notice which
reproduced Resolution No. 9674's dispositive portion.
Dismembering an official issuance by producing only a
portion of it (even if the reproduced portion is the most
significant, i.e., dispositive, portion) is not the same as
serving on the concerned parties a copy of the official
issuance itself. Petitioners may have been informed of
what the dispositive portion stated, but it remains that
they were never notified and served copies of the
assailed Resolution itself. In Resolution No. 9674's own
words, compliance was expected "within three (3) days
from receipt of this Resolution[,]"152 not of its partial,
dismembered, reproduction.
Not having been served with copies of Resolution No.
9674 itself, petitioners are right in construing the three-
day period for compliance as not having begun to run.
From this, it follows that no violation of the requirement
"to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of
surveys published from February 12, 2013 to the date of
the promulgation of this Resolution[.]"153 could have
been committed. Thus, there was no basis for
considering petitioners to have committed an election
offense arising from this alleged violation.
It is of no consequence that the May 8, 2013 Notice
warned petitioners that failure to comply with it "shall
constitute an election offense punishable under the first
and second paragraphs of Section 264 of the Omnibus
Election Code."154 It is true that the Omnibus Election
Code has been in force and effect long before Resolution
No. 9674 was promulgated; nevertheless, the supposed
violation of the Omnibus Election Code rests on
petitioners' alleged non-compliance with Resolution No.
9674. This is a matter which, as we have demonstrated,
is baseless, the three-day period for compliance not
having even commenced.
It is similarly inconsequential that petitioners were
subsequently able to obtain certified true copies of
Resolution No. 9674. Petitioners' own diligence in
complying with the formal requirements of Rule 65
petitions filed before this court cannot possibly be the
cure for COMELEC's inaction. These certified true copies
were secured precisely to enable petitioners to assail
COMELEC's actions, not to validate them. It would be
misguided to subscribe to COMELEC's suggestion that
petitioners' diligence should be their own undoing. To
accede to this would be to effectively intimidate parties
with legitimate grievances against government actions
from taking the necessary steps to comply with (formal)
requisites for judicial remedies and, ultimately, prevent
them from protecting their rights.
COMELEC's error is compounded by its failure to provide
petitioners with copies of the criminal complaint subject
of E.O. Case No. 13-222. COMELEC has neither alleged
nor proven that it has done so. Per its own allegations,
all it did was serve petitioners with the May 8, 2013
Notice and the July 1, 2013 Subpoena.

These facts considered, it was not only grave error, but

grave abuse of discretion, for COMELEC to pursue
unfounded criminal charges against petitioners. In so
doing, COMELEC violated petitioners' right to due
process.

WHEREFORE, the Petition is PARTIALLY GRANTED in

that COMELEC Resolution No. 9674 is upheld, and
respondent Commission on Elections is ENJOINED from
prosecuting petitioners Social Weather Stations, Inc. and
Pulse Asia, Inc. for their supposed violation of COMELEC
Resolution No. 9674 in respect of their non-submission of
the names of all commissioners and payors, including
subscribers, of surveys published during the campaign
period for the 2013 elections.

SO ORDERED. chanroblesvirtuallawlibrary

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro,

Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza,
Reyes, and Leonen, JJ., concur.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Jardeleza, J., no part, prior action as SolGen.
 EN BANC
G.R. No. 208062, April 07, 2015
SOCIAL WEATHER STATIONS, INC. AND PULSE
ASIA, INC., Petitioners, v. COMMISSION ON
ELECTIONS, Respondent.
DECISION
LEONEN, J.:
This resolves the Petition1 for certiorari and prohibition
under Rule 64, in relation to Rule 65, of the 1997 Rules
of Civil Procedure praying that respondent Commission
on Elections' Resolution No. 96742 dated April 23, 2013
be nullified and set aside and that the Commission on
Elections be permanently enjoined from enforcing the
same Resolution, as well as prosecuting Social Weather
Stations, Inc. and Pulse Asia, Inc. for violating it or
otherwise compelling compliance with it.3
Commission on Elections' (COMELEC) Resolution No.
9674 directed Social Weather Stations, Inc. (SWS) and
Pulse Asia, Inc. (Pulse Asia), as well as "other survey
firms of similar circumstance"4 to submit to COMELEC the
names of all commissioners and payors of all surveys
published from February 12, 2013 to April 23, 2013,
including those of their "subscribers."5
SWS and Pulse Asia are social research and public polling
firms. Among their activities is the conduct of pre-
election surveys.6
As recounted by SWS and Pulse Asia, on February 15 to
February 17, 2013, SWS conducted a pre-election survey
on voters' preferences for senatorial candidates.
Thereafter, it published its findings.7 The following
question was asked in the survey:
Kung ang eleksyon ay gaganapin ngayon, sino ang
pinakamalamang ninyong iboboto bilang mga SENADOR
ng PILIPINAS? Narito ang listahan ng mga kandidato.
Paki-shade o itiman po ang naaangkop na oval katabi ng
pangalan hg mga taong pinakamalamang ninyong
iboboto. Maaari po kayong pumili ng hanggang
labindalawang (12) kandidato.
(LIST OF CANDIDATES OMITTED)
If the elections were held today, whom would you most
probably vote for as SENATORS of the
PHILIPPINES? Here is a list of candidates. Please shade
the oval beside the name of the persons you would most
likely vote for. You may choose up to twelve (12)
candidates.
(LIST OF CANDIDATES OMITTED)8 (Emphasis in the
original)
On March 20, 2013, Representative Tobias M. Tiangco
(Tiangco), Secretary-General of the United Nationalist
Alliance (UNA), wrote Atty. Esmeralda Ladra, Director of
COMELEC's Law Department.9 In his letter,10 Tiangco
asked COMELEC to "compel [SWS] to either comply with
the directive in the Fair Election Act and COMELEC
Resolution No. 9[6]1[5] and give the names or identities
of the subscribers who paid for the [pre-election survey
conducted from February 15 to February 17, 2013], or be
liable for the violation thereof, an act constitutive of an
election offense."11
Tiangco recounted that on February 28, 2013, he wrote
to SWS requesting, among others, that he "be furnished
the identity of persons who paid for the [pre-election
survey conducted from February 15 to February 17,
2013] as well as those who subscribed to it."12 Sometime
in March 2013, SWS supposedly replied to Tiangco,
"furnishing [him] with some particulars about the survey
but [without] disclosing] the identity of the persons who
commissioned or subscribed to the survey."13
Acting on Tiangco's letter and on the COMELEC Law
Department's recommendation, the COMELEC En Bane
issued the Order14 dated April 10, 2013 setting the
matter for hearing on April 16, 2013. The same Order
directed SWS to submit its Comment within three (3)
days of receipt.15 On April 12, 2013, Pulse Asia received
a letter from COMELEC "requesting its representative to
attend the COMELEC hearing on 16 April 2013."16
SWS and Pulse Asia recounted that during the hearing,
COMELEC Chairman Sixto S. Brillantes, Jr. (COMELEC
Chairman Brillantes) stated that the proceeding was
merely a clarificatory hearing and not a formal hearing or
an investigation.17
On April 23, 2013, COMELEC issued the assailed
Resolution No. 9674. The entire dispositive portion of this
Resolution reads:
WHEREFORE, premises considered, the Commis[s]ion
RESOLVED, as it hereby RESOLVES, to DIRECT the SWS,
Pulse Asia and other survey firms of similar circumstance
to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of
surveys published from February 12, 2013 to the date of
the promulgation of this Resolution for copying and
verification by the Commission. The submission shall
include the names of all "subscribers" of those published
surveys. Such information/data shall be for the exclusive
and confidential use of the Commission;
RESOLVED FURTHER, that all surveys published
subsequent to the promulgation of this Resolution must
be accompanied by all the information required in
Republic Act no. 9006, including the names of
commissioners, payors and subscribers.
This resolution shall take effect immediately after
publication.
A violation of these rules shall constitu[t]e an election
offense as provided in Republic Act no. 9006, or the Fair
Election Act.18 (Emphasis in the original)
As basis for Resolution No. 9674, COMELEC cited Article
IX-C, Section 2(1)19 of the 1987 Constitution and
Sections 5.1 to 5.320 of Republic Act No. 9006, otherwise
known as the Fair Election Act, as implemented by
COMELEC Resolution No. 9615.21
SWS and Pulse Asia alleged that following the issuance of
Resolution No. 9674 and as of their filing before this
court of the present Petition, they had not been furnished
copies of Resolution No. 9674.22 (They emphasized that
while a certified true copy of this Resolution was attached
to their Petition, this was a copy which they themselves
secured "for the purpose of complying.with the
requirement that Rule 65 petitions must be accompanied
by a certified true copy of the assailed order or
resolution[.]"23)
In the letter24 dated April 30, 2013, SWS and Pulse Asia
informed COMELEC Chairman Brillantes that they had not
received a copy of Resolution No. 9674. They also
articulated their view that Resolution No. 9674 was
tainted with irregularities, having been issued ultra
vires (i.e., in excess of what the Fair Election Act allows)
and in violation of the non-impairment of contracts
clause of the Constitution. They also expressed their
intention to bring the matter before this court on account
of these supposed irregularities. Thus, they requested
that COMELEC defer or hold in abeyance Resolution No.
9674's enforcement.25
On May 8, 2013, the COMELEC Law Department issued a
Notice26 to SWS (and also to Pulse Asia) directing it to
furnish COMELEC with a list of the names of all
"commissioners, subscribers, and payors of surveys
published from February 12, 2013 until April 23,
2013."27 SWS was warned that failure to comply with the
Notice shall constitute an election offense punishable
under the Omnibus Election Code.28
On July 1, 2013, COMELEC issued a Subpoena29 notifying
SWS and Pulse Asia that a Complaint "for violation of
Section 264[,] par. 1 and 2 of the Omnibus Election
Code30 in relation to R.A. 9006"31 was filed against them.
(This was docketed as E.O. Case No. 13-222). They were
also directed to appear and to submit their counter-
affidavits and other supporting documents at the hearing
set on August 6, 2013.32
SWS and Pulse Asia maintained that before receiving the
Subpoena, they were never informed that a criminal case
had been filed against them. They added that they were
never furnished copies of the relevant criminal
Complaint.33
On July 26, 2013, petitioners Social Weather Stations,
Inc. and Pulse Asia, Inc. filed the present Petition.34 They
assail Resolution No. 9674 as having been issued ultra
vires. They are of the position that Resolution No. 9674,
in requiring the submission of information on subscribers,
is in excess of what the Fair Election Act
requires.35 Likewise, they, assert that Resolution No.
9674 transgresses the Fair Election Act in making itself
executory immediately after publication.36 Moreover,
they claim that it violates the non-impairment of
contracts clause of the Constitution,37 and was enforced
in violation of their right to due process (as they were
charged with its violation despite not having been
properly served with copies of the complaint filed against
them).38 Petitioners pray for the issuance of a temporary
restraining order and/or writ of preliminary injunction in
the interim.39
In this court's July 30, 2013 Resolution,40 COMELEC was
required to file a Comment on the Petition. In the same
Resolution, this court issued a temporary restraining
order "enjoining the enforcement of COMELEC Resolution
No. 9674 with respect to submission of the names of
regular subscribers but not to the submission of (1) the
names of specific subscribers for the limited period of
February 12, 2013 to April 23, 2013 who have paid a
substantial amount of money for access to survey results
and privileged survey data; and (2) the names of all
commissioners and payors of surveys published within
the same period."41
On October 10, 2013, COMELEC filed its Comment.42 On
February 12, 2014, petitioners filed their Joint Reply.43
In this court's February 18, 2014 Resolution,44 the
present Petition was given due course, and the parties
were directed to file their memoranda. Petitioners
complied on May 16, 201445 and COMELEC on June 25,
2014.46
For resolution are the following issues:
First, whether Resolution No. 9674 is invalid in that it
requires the disclosure of the names of "subscribers" of
election surveys;
Second, whether the rights of petitioners to free speech
will be curtailed by the requirement to submit the names
of their subscribers;
Third, whether Resolution No. 9674, insofar as it compels
petitioners to submit the names of their subscribers,
violates the constitutional proscription against the
impairment of contracts (Article II, Section 10);
Fourth, whether at the time petitioners were required by
COMELEC to reveal the names of the subscribers to their
election surveys, Resolution No. 9674 was already in
force and effect; and
Lastly, whether COMELEC deprived petitioners of due
process of law when it:
a) failed to provide them with a copy of Resolution No.
9674 and the criminal complaint for an election offense;
and
b) refused to specify the election offense under which
they were being prosecuted.
We sustain the validity of Resolution No. 9674. The
names of those who commission or pay for election
surveys, including subscribers of survey firms, must be
disclosed pursuant to Section 5.2(a) of the Fair Election
Act. This requirement is a valid regulation in the exercise
of police power and effects the constitutional policy of
"guarantee[ing] equal access to opportunities for public
service[.]"47 Section 5.2(a)'s requirement of disclosing
subscribers neither curtails petitioners' free speech rights
nor violates the constitutional proscription against the
impairment of contracts.
However, it is evident that Resolution No. 9674 was
promulgated in violation of the period set by the Fair
Election Act. Petitioners were also not served a copy of
Resolution No. 9674 with which they were asked to
comply. They were neither shown nor served copies of
the criminal Complaint subject of E.O. Case No. 13-222.
Petitioners' right to due process was, thus, violated.
Petitioners assail Resolution No. 9674's requirement of
submission of names of subscribers, including those who
did not commission or pay for a specific survey or cause
its publication, for being ultra vires. They maintain that
the Fair Election Act "as it was written by Congress
covers only those who commission or pay for a particular
election survey, and requires disclosure of their names
only when that particular survey is published."48 From
this, they add that COMELEC exceeded its authority —
"creating] an election offense where there was none
before"49 — in considering as an election offense any
violation of Resolution No. 9674.
COMELEC, for its part, insists on the "wide latitude of
discretion"50 granted to it in the performance of its
constitutional duty to "[e]nforce and administer all laws
and regulations relative to the conduct of an
election[.]"51 It adds that "as the specialized
constitutional body charged with the enforcement and
administration of election laws,"52 its contemporaneous
construction of Section 5.2(a) of the Fair Election Act is
"entitled to great weight and respect."53 Citing the
supposed legislative intent of Section 5.2 as
"broaden[ing] the subject of disclosure,"54 COMELEC
claims that Section 5.2(a) "draws no distinction between
the direct payors and the indirect payors of the
survey."55 It adds that requiring the disclosure of survey
subscribers addresses the requirement of reporting
election expenditures by candidates and political parties,
thereby helping COMELEC check compliance with this
requirement.56
Section 5.2(a) of the Fair Election Act, read in a manner
consistent not only with its text but also with the purpose
for which it, along with the Fair Election Act, was
adopted, sustains COMELEC's position.
Republic Act No. 9006 was adopted with the end in mind
of "guarantee[ing] or ensuring] equal opportunity for
public service"57 and to this end, stipulates mechanisms
for the "supervision] or regulation of] the enjoyment or
utilization of all franchises or permits for the operation of
media of communication or information[.]"58 Hence, its
short title: Fair Election Act.
Situated within the constitutional order, the Fair Election
Act provides means to realize the policy articulated in
Article II, Section 26 of the 1987 Constitution to
"guarantee equal access to opportunities for public
service[.]" Article II, Section 26 models an understanding
of Philippine political and electoral reality. It is not merely
hortatory or a statement of value. Among others, it sums
up an aversion to the perpetuation of political power
through electoral contests skewed in favor of those with
resources to dominate the deliberative space in any
media.
Apart from making real Article II, Section 26's
constitutional policy, the Fair Election Act represents the
legislature's compliance with the requirement of Article
XIII, Section 1: "Congress . . . give[s] highest priority to
the enactment of measures that. . . reduce . . . political
inequalities ... by equitably diffusing wealth and political
power for the common good."59
Moreover, the constitutional desire to "guarantee equal
access to opportunities for public service"60 is the same
intent that animates the Constitution's investiture in
COMELEC of the power to "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."61
Specific provisions in the Fair Election Act regulate the
means through which candidates for elective public
office, as well as political parties and groups participating
in the party-list system, are able to make themselves
known to voters, the same means through which they
earn votes.
Section 3 permits the use of lawful election
propaganda.62 Section 4 regulates published or printed,
and broadcast election propaganda.63 Section 6 governs
access to media time and space.64 Sections 7 and 8
provide for COMELEC's competencies (i.e., affirmative
action, and the so-called "COMELEC Space" and
"COMELEC Time") that enable it to equalize candidates'
exposure to voters.65 Section 9 regulates venues for the
posting of campaign materials.66 Section 10 provides for
parties' and candidates' right to reply.67 Section 11
requires media outlets to make available the use of their
facilities for election propaganda at discounted rates.68
The Fair Election Act also governs published surveys
during elections.
Section 5.1 defines election surveys-as "the
measurement of opinions and perceptions of the voters
as regards a candidate's popularity, qualifications,
platforms or a matter of public discussion in relation to
the election, including voters' preference for candidates
or publicly discussed issues during the campaign
period[.]" Sections 5.2 and 5.3 provide regulations that
facilitate transparency with respect to ' election surveys.
Section 5.469 is no longer in effect, having been declared
unconstitutional in this court's May 5, 2001 Decision
in Social Weather Stations and Kamahalan Publishing
Corp. v. COMELEC.70 Section 5.571 pertains to exit polls.
Section 5.2 enumerates the information that a person
publishing an election survey must publish along with the
survey itself:
5.2 During the election period, any person, natural as
well as juridical, candidate or organization who publishes
a survey must likewise publish the following
information:chanroblesvirtuallawlibrary
a. The name of the person, candidate, party or.
organization who commissioned or paid for the
survey;
b. The name of the person, polling firm or survey
organization who conducted the survey;
c. The period during which the survey was
conducted, the methodology used, including the
number of individual respondents and the areas
from which they were selected, and the specific
questions asked;
d. The margin of error of the survey;
e. For each question for which the margin of error is
greater than that reported under paragraph (d),
the margin of error for that question; and
f. A mailing address and telephone number,
indicating it as an address or telephone number at
which the sponsor can be contacted to obtain a
written report regarding the survey in accordance
with Subsection 5.3. (Emphasis supplied)
Section 5.3 facilitates the inspection, copying, and
verification not only of an election survey but also of the
raw data used as bases for its conclusions:
5.3 The survey together with raw data gathered to
support its conclusions shall be available for inspection,
copying and verification by the COMELEC or by a
registered political party or a bona fide candidate, or by
any COMELEC-accredited citizen's arm. A reasonable fee
sufficient to cover the costs of inspection, copying and
verification may be charged.
As with all the other provisions of the Fair Election Act,
Section 5 is a means to guarantee equal access to the
deliberative forums essential to win an elective public
office. Any reading of Section 5 and of its individual
components, such as Section 5.2(a), cannot be divorced
from this purpose.

The inclusion of election surveys in the list of items
regulated by the Fair Election Act is a recognition that
election surveys are not a mere descriptive aggregation
of data. Publishing surveys are a means to shape the
preference of voters, inform the strategy of campaign
machineries, and ultimately, affect the outcome of
elections. Election surveys have a similar nature as
election propaganda. They are expensive, normally paid
for by those interested in the outcome of elections, and
have tremendous consequences on election results.
II
Views vary on the precise extent to which surveys or
"polls" shape voter preferences, if at all.
Election surveys have been critiqued for amplifying the
notion of an election as a "horse race"72 and for reducing
elections to the lowest common denominator of
percentage points or a candidate's erstwhile share in the
vote market rather than focusing on issues, principles,
programs, and platforms.
Several possible, albeit conflicting, effects of surveys on
voter behavior have been postulated:
First, there is the bandwagon effect where "electors
rally to support the candidate leading in the polls."73 This
"assumes that knowledge of a popular 'tide' will likely
change voting intentions in [favor] of the frontrunner,
that many electors feel more comfortable supporting a
popular choice or that people accept the perceived
collective wisdom of others as being enough reason for
supporting a candidate."74
Second, there is the underdog effect where "electors
rally to support the candidate trailing in the polls."75 This
shift can be motivated by sympathy for the perceived
underdog.76
Third, there is the motivating effect where "individuals
who had not intended to vote are persuaded to do
so,"77 having been alerted to the fact of an election's
imminence.78
Fourth, there is also the demotivating effect where
"voters abstain from voting out of certainty that their
candidate or party will win[.]"79
Fifth, there are reports of a behavior known as strategic
voting where "voting is influenced by the chances of
winning[.]"80
Lastly, there is also the theory of a free-will
effect where "voters cast their ballots to prove the polls
wrong[.]"81
Election surveys published during election periods create
the "politics of expectations."82 Voters act in accordance
with what is perceived to be an existing or emerging
state of affairs with respect to how candidates are faring.
Of the six (6) effects, the bandwagon effect has a
particular resonance and has been of concern. Surveys,
or opinion polls, "by directly influencing individual-level
support . . . , can be self-fulfilling prophecies and
produce opinion cascades."83 "[A] poll's prediction may
come to pass not only because it measures public opinion
but also because it may influence public opinion."84
The bandwagon effect is of particular concern because of
the observed human tendency to conform. Three (3)
mechanisms through which survey results may induce
conformity have been posited:
(1) normative social influence, or people's desire to adopt
the majority position in order to feel liked and accepted
or believe they are on the winning team;
(2) informational social influence, or people learning from
the 'wisdom of crowds' via social proof because they
'believe that others' interpretation of an ambiguous
situation is more accurate . . . and will help [them]
choose an appropriate course of action'; and
(3) people resolving cognitive dissonance by switching to
the side they infer is going to win based on the poll.85
cralawlawlibrary
Likewise, it has been argued that the bandwagon effect is
but the obverse of the so-called false-consensus effect or
false-consensus bias:
The bandwagon effect, a form of conformity, is the mirror
image of the false consensus effect, where people
misperceive that their own behaviors and attitudes are
more popular than they actually are. In the political
domain, one mechanism underlying the false consensus
effect is wishful thinking - people gaining utility from
thinking their candidate is ahead or their opinions are
popular.86
The bandwagon effect induced by election surveys
assumes even greater significance in considering the
health of a democracy.
Integral to our appreciation of democracy is the
recognition that democracy is fundamentally deliberative.
It is rooted in the exchange and dialogue of ideas.
Accordingly, free expression, not least of all from the
minority and from those who do not conform, i.e., those
who dissent and criticize, is indispensable:
Proponents of the political theory on "deliberative
democracy" submit that "substantial, open, [and] ethical
dialogue is a critical, and indeed defining, feature of a
good polity." This theory may be considered broad, but it
definitely "includes [a] collective decision making with
the participation of all who will be affected by the
decision." It anchors on the principle that the cornerstone
of every democracy is that sovereignty resides in the
people. 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 public affairs, 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."
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." 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."87 cralawlawlibrary
However, "conformity pressures can suppress minority
opinion."88 The bandwagon effect conjures images of an
impregnable majority, thereby tending to push farther
toward the peripheries those who are already
marginalized. Worse, the bandwagon effect foments the
illusion of a homogenous monolith denying the very
existence of those in the minority. This undermines the
"normative conceptions of democracy"89 substituting the
democratic dialogue with acquiescence to perceived or
projected orthodoxy.
Surveys, far from being a passive "snapshot of many
viewpoints held by a segment of the population at a
given time,"90 can warp existing public opinion and can
mould public opinion. They are constitutive. Published
election surveys offer valuable insight into public opinion
not just because they represent it but more so because
they also tend to make it.
Appreciating this tendency to both entrench and
marginalize is of acute relevance in the context of
Philippine political reality. This is the same reality that
our policymakers, primarily the framers of the
Constitution, have seen fit to address.
III
The constitutional dictum to "guarantee equal access to
opportunities for public service"91 and (even more
specifically and explicitly) to "prohibit political
dynasties"92 does not exist in a vacuum.
Politics in the Philippines has been criticized as "a
lucrative means of self-aggrandizement."93 Ours is an
exclusive system that perpetuates power and provides
sanctuary to those who have already secured their place.
Traditional Filipino politics connotes elite families that,
with the state, are "engaged in a reciprocal relationship
that constantly defines and redefines both."94 As
recounted by Alfred McCoy, this reciprocal relationship,
typified by rent-seeking (i.e., "taking advantage of their
access to state privileges to expand proprietary
wealth"95), is a vicious cycle propagated for as long as
the Philippines has been a republic: "The emergence of
the Republic as a weak postcolonial state augmented the
power of rent-seeking political families — a development
that further weakened the state's own resources."96
The Philippines, as it emerged in the wake of Ferdinand
Marcos' presidency and the adoption of the 1987
Constitution, saw the "celebritification"97 of political
office. On the legislature and studying emerging
contrasts in the composition of its two chambers — the
Senate and the House of Representatives — it has been
noted:
The old political families, however are not as strong in
the Senate as they are in the House. This could be read,
if not as a total repudiation by voters of family power,
then at least as an attempt by them to tap other sources
of national leadership. Celebrities and military and police
officers have emerged as alternatives to traditional
politicians. It could be that these new men and women
have captured the popular imagination or that they are
more in tune with the public pulse. But their emergence
could very well be seen as an indication of the paucity of
choices: Political parties, for one, have not succeeded in
proffering a wider range of options to an electorate
weary of trapos.98
This celebritification nurtures misleading notions of an
enhanced or healthier democracy, one that opens
avenues to a crop of political leaders not belonging to
oligarchic families. Viewed critically however, this is
nothing more than a pipe dream. New elites now share
the political stage with the old. The tension between two
contrary tendencies actually serves to preserve the
status quo of elitism — an expanded elitism perhaps, but
elitism no less. To evoke a truism, "the more things
change, the more they stay the same":
But the "celebritification" of the Senate can also be
interpreted as the democratization of an exclusive body
once reserved only for the very rich, the politically
experienced, and the intellectually brilliant. In a sense,
the bar of entry has been lowered, and anyone with
national renown can contest a seat in a chamber once
famous for sharp debates and polysyllabic peroration.
The main criterion for a Senate seat is now name
recall. This is where celebrities have the edge even over
older political families with bankable names. . . .
....
The diminishing clout of old families in the Senate—and
their continued dominance in the House—shows the push
and pull of two contrary tendencies. The first tendency is
toward the new: The importance of name recall in
national elections taking place in a media-inundated
environment makes it easier for movie and media
personalities, and harder for old-style politicians, to be
elected. The second tendency is veering toward the old:
At the district level, trapo-style patronage and machine
politics remain deeply entrenched, giving political families
the edge in elections."99
Thus, where once there was elitism solely along lines of
kinship — Alfred McCoy's so-called "anarchy of families"
— now there is also elitism demarcated by name recall,
populist projection, and media exposure, arguably, an
"anarchy of celebrities."
Certainly, it is not the business of this court to engage in
its own determination of the wisdom of policy.
Nevertheless, having to grapple with the tasks of
adjudication and interpretation, it has become necessary
to bring to light the intent that underlies the disputed
statutory provision, as well as the constitutional regime
and social context, in which this provision is situated.
To reiterate, the inclusion of published election surveys in
a statute that regulates election propaganda and other
means through which candidates may shape voter
preferences is itself telling of the recognition that
published election surveys, too, may influence voter
preferences. This inclusion is similarly telling of a
recognition that, left unregulated, election surveys can
undermine the purposes of ensuring "fair" elections.
These recognitions are embedded in the Fair Election Act;
they are not judicial constructs. In adjudicating with
these' as bases, this court is merely adhering to the
legislative imperative.
IV
It is necessary that the Fair Election Act be appreciated
for what it is: a mechanism for ensuring equality. The
Fair Election Act is a means to effect the "necessary
condition" to a genuine democratic dialogue, to realizing
a deliberative democracy. The concept of this "necessary
condition" was previously considered by this court
in Diocese of Bacolod v. COMELEC:100
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 "protecting] the already established
machinery of discrimination." 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.
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 selfi-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.
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'."
He submits that "[different 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."
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." 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."101
What is involved here is petitioners' freedom of speech
and of expression, that is, to publish their findings. More
specifically, what is involved here is their right to political
speech, that which "refers to speech 'both intended and
received as a contribution to public deliberation about
some issue,' 'foster[ing] informed and civic-minded
deliberation."102
The nature of the speech involved, as well as the Fair
Election Act's purpose of ensuring political equality, calls
into operation the equality-based approach to
weighing liberty to express vis-a-vis equality of
opportunities. As explained in Diocese of Bacolod:103
In an equality-based approach, "politically disadvantaged
speech prevails over regulation[,] but regulation
promoting political equality prevails over speech." 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. 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 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.104
The required judicial temperament in appraising speech
in the context of electoral campaigns which is principally
designed to endorse a candidate, both by candidates and
/ or political parties, on the one hand, and private
citizens, on the other, has thus been articulated:
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 to an
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 on the basis of its
content. For this purpose, it will not matter whether the
speech is made with or on private property.105 [Emphasis
in the original]
V who "commissioned" from those who "paid for" and
Concededly, what is involved here is not election
propaganda per se. Election surveys, on their face, do
not state or allude to preferred candidates. As a means,
election surveys are ambivalent. To an academician, they
are an aggrupation of data. To a journalist, they are
matters for reportage. To a historian, they form part of a
chronicle. Election surveys thus become unambiguous
only when viewed in relation to the end for which they
are employed. To those whose end is to get a candidate
elected, election surveys, when limited to their own
private consumption, are a means to formulate
strategy. When published, however, the tendency to
shape voter preferences comes into play. In this respect,
published election surveys partake of the nature of
election propaganda. It is then declarative speech in the
context of an electoral campaign properly subject to
regulation. Hence, Section 5.2 of the Fair Election Act's
regulation of published surveys.
We thus proceed to evaluate Resolution No. 9674's
requirement of disclosing the names of subscribers to
election surveys in light of the requisites for valid
regulation of declarative speech by private entities in the
context of an election campaign:
First, the text of Section 5.2(a) of the Fair Election Act
supports the inclusion of subscribers among those
persons who "paid for the survey[.]"106 Thus, Resolution
No. 9674 is a regulation finding basis in statute.
COMELEC correctly points out that in Section 5.2(a) of
the Fair Election Act, those who "commissioned" and
those who "paid for" the published survey are separated
by the disjunctive term "or."107 This disassociates those
identifies them as alternatives to each other.108 Section
5.2(a) thus requires the disclosure of two (2) classes of
persons: "[first,] those who commissioned or sponsored
the survey; and [second,] those who paid for the
survey."109
The second class makes no distinction between those
who pay for a specific survey and those who pay for
election surveys in general. Indeed, subscribers do not
escape the burden of paying for the component articles
comprising a subscription. They may pay for them in
aggregate, but they pay for them just the same. From
the text of Section 5.2(a), the legislative intent or
regulatory concern is clear: "those who have financed,
one way or another, the [published] survey"110 must be
disclosed.
Second, not only an important or substantial state
interest but even a compelling one reasonably grounds
Resolution No. 9674's inclusion of subscribers to election
surveys. Thus, regardless of whether an intermediate or
a strict standard is used, Resolution No. 9674 passes
scrutiny.
It is settled that constitutionally declared principles are a
compelling state interest:
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,
constitute a substantial and compelling government
interest in regulating . . . utterances in TV broadcast."111
Here, we have established that the regulation of election
surveys effects the constitutional policy, articulated in
Article II, Section 26, and reiterated and affirmed in
Article IX-C, Section 4 and Article XIII, Section 26 of the
1987 Constitution, of "guarantee[ing] equal access to
opportunities for public service[.]"112
Resolution No. 9674 addresses the reality that an
election survey is formative as it is descriptive. It can be
a means to shape the preference of voters and, thus, the
outcome of elections. In the hands of those whose end is
to get a candidate elected, it is a means for such end and
partakes of the nature of election propaganda.
Accordingly, the imperative of "fair" elections impels their
regulation.
Lastly, Resolution No. 9674 is "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"113 and is
"demonstrably the least restrictive means to achieve that
object."114
While it does regulate expression (i.e., petitioners'
publication of election surveys), it does not go so far as
to suppress desired expression. There is neither
prohibition nor censorship specifically aimed at election
surveys. The freedom to publish election surveys
remains. All Resolution No. 9674 does is articulate a
regulation as regards the manner of publication, that is,
that the disclosure of those who commissioned and/or
paid for, including those subscribed to, published election
surveys must be made. cralawlawlibrary
VI
Petitioners harp on what they claim to be Section 5.2(a)'s
"plain meaning" and assert that there is no room to
entertain COMELEC's construction of Section 5.2(a).115
It has been said that "[a] cardinal rule in statutory
construction is that when the law is clear and free from
any doubt or ambiguity, there is no room for construction
or interpretation. There is only room for application."116
Clarifications, however, are in order.
First, verba legis or the so-called plain-meaning rule
applies only when the law is completely clear, such that
there is absolutely no room for interpretation. Its
application is premised on a situation where the words of
the legislature are clear that its intention, insofar as the
facts of a case demand from the point of view of a
contemporary interpretative community, is neither vague
nor ambiguous. This is a matter of judicial appreciation.
It cannot apply merely on a party's contention of
supposed clarity and lack of room for interpretation.
This is descriptive of the situation here.
Interestingly, both COMELEC and petitioners appeal to
what they (respectively) construe to be plainly evident
from Section 5.2(a)'s text: on the part of COMELEC, that
the use of the words "paid for" evinces no distinction
between direct purchasers and those who purchase via
subscription schemes; and, on the part of petitioners,
that Section 5.2(a)'s desistance from actually using the
word "subscriber" means that subscribers are beyond its
contemplation.117 The variance in the parties' positions,
considering that they are both banking on what they
claim to be the Fair Election Act's plain meaning, is the
best evidence of an extant ambiguity.
Second, statutory construction cannot lend itself to
pedantic rigor that foments absurdity. The dangers of
inordinate insistence on literal interpretation are
commonsensical and need not be belabored. These
dangers are by no means endemic to legal interpretation.
Even in everyday conversations, misplaced literal
interpretations are fodder for humor. A fixation on
technical rules of grammar is no less innocuous. A
pompously doctrinaire' approach to text can stifle, rather
than facilitate, the legislative wisdom that unbridled
textualism purports to bolster.118
Third, the assumption that there is, in all cases, a
universal plain language is erroneous. In reality,
universality and uniformity of meaning is a rarity. A
contrary belief wrongly assumes that language is static.
The more appropriate and more effective approach is,
thus, holistic rather than parochial: to consider context
and the interplay of the historical, the contemporary, and
even the envisioned. Judicial interpretation entails the
convergence of social realities and social ideals. The
latter are meant to be effected by the legal apparatus,
chief of which is the bedrock of the prevailing legal order:
the Constitution. Indeed, the word in the vernacular that
describes the Constitution — saligan — demonstrates this
imperative of constitutional primacy.
Thus, we refuse to read Section 5.2(a) of the Fair
Election Act in isolation. Here, we consider not an
abstruse provision but a stipulation that is part of the
whole, i.e., the statute of which it is a part, that is aimed
at realizing the ideal of fair elections. We consider not a
cloistered provision but a norm that should have a
present authoritative effect to achieve the ideals of those
who currently read, depend on, and demand fealty from
the Constitution.cralawlawlibrary
VII
We note with favor COMELEC's emphasis on the "wide
latitude of discretion"119 granted to it in the performance
of its constitutional duty to "[e]nforce and administer all
laws arid regulations relative to the conduct of an
election[.]"120 But this is with the caution that it does not
reach "grave abuse of discretion[.]121
Alliance for Nationalism and Democracy v.
COMELEC122 had the following to say regarding factual
findings made by COMELEC, an independent
constitutional organ:
[T]he rule that factual findings of administrative bodies
will not be disturbed by courts of justice except when
there is absolutely no evidence or no substantial
evidence in support of such findings should be applied
with greater force when it concerns the COMELEC, as the
framers of the Constitution intended to place the
COMELEC—created and explicitly made independent by
the Constitution itself—on a level higher than statutory
administrative organs.123
Proceeding from this, we emphasize that this norm of
deference applies not only to factual findings. This
applies with equal force to independent constitutional
organs' general exercise of their functions. The
constitutional placing of independent constitutional
organs on a plane higher than those of administrative
agencies created only by statute is not restricted to
competence in fact-finding. It extends to all purposes for
which the Constitution created them.
We reiterate, however, that our recognition of this
deferential norm is made with caution. This rule of
deference does not give independent constitutional
organs, like COMELEC, license to gravely abuse their
discretion. With respect to rule-making, while the wisdom
of "subordinate legislation" or the rule-making power of
agencies tasked with the administration of government is
acknowledged, rule-making agencies are not given
unfettered power to promulgate rules. As explained
in Gerochi v. Department of Energy,124 it is imperative
that subordinate legislation "be germane to the objects
and purposes of the law and that the regulation be not in
contradiction to, but in conformity with, the standards
prescribed by the law."125 A regulation that purports to
effect a statute but goes beyond the bounds of that
statute is ultra vires; it is in excess of the rule-making
agency's competence. Thus, it is void and ineffectual.
This is not the case here. There is no grave abuse of
discretion. Resolution No. 9674 serves a constitutional
purpose and works well within the bounds of the
Constitution and of statute.cralawlawlibrary
VIII
Petitioners argue that Resolution No. 9674 constitutes a
prior restraint in that:
Resolution No. 9674 makes it an election offense for a
survey firm not to disclose the names of subscribers who
have paid substantial amounts to them, even if ihe
survey portions provided to them have not been
published. 1'his requirement is unduly burdensome and
onerous and constitutes a prior restraint on the right of
survey firms to gather information on public opinion and
disseminate it to the citizenry.
. . . If Resolution No. 9674 is allowed to stand, survey
firms will no longer be able to operate because they will
not have enough clients and will not be financially
sustainable. COMELEC will finally be able to do indirectly
what it could not do directly, which is to prohibit the
conduct of election surveys and the publication or
dissemination of the results to the public.126
Petitioners' assertions are erroneous.
Chavez v. Gonzales127 explained the concept of prior
restraint as follows:
Prior restraint refers to official governmental restrictions
on the press or other forms of expression in advance of
actual publication or dissemination. Freedom from prior
restraint is largely freedom from government censorship
of publications, whatever the form of censorship, and
regardless of whether it is wielded by the executive,
legislative or judicial branch of the government. Thus, it
precludes governmental acts that required approval of a
proposal to publish; licensing or permits as prerequisites
to publication including the payment of license taxes for
the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing
offices of certain newspapers, resulting in the
discontinuation of their printing and publication, are
deemed as previous restraint or censorship. Any law or
official that requires some form of permission to be had
before publication can be made, commits an infringement
of the constitutional right, and remedy can be had at the
courts.128 (Emphasis supplied, citations omitted)
The very definition of "prior restraint" negates
petitioner's assertions. Resolution No. 9674 poses no
prohibition or censorship specifically aimed at election
surveys. Apart from regulating the manner of publication,
petitioners remain free to publish election surveys.
COMELEC correctly points out that "[t]he disclosure
requirement kicks in only upon, not prior
to, publication."129
In any case, the requirement of disclosing subscribers is
neither unduly burdensome nor onerous. Prior to the
promulgation of Resolution No. 9674, survey firms were
already understood to be bound by the requirement to
disclose those who commissioned or paid for published
election surveys. Petitioners have been complying with
this without incident since the Fair Election Act was
enacted in 2001. After more than a decade of
compliance, it is odd for petitioners to suddenly assail the
disclosure requirement as unduly burdensome or
onerous.
Petitioners' claim that "[i]f Resolution No. 9674 is allowed
to stand, survey firms will no longer be able to operate
because they will not have enough clients and will not be
financially sustainable"130 is too speculative and
conjectural to warrant our consideration. The assumption
is that persons who want to avail of election survey
results will automatically be dissuaded from doing so
when there is a requirement of submission of their
names during the campaign period. This is neither self-
evident, nor a presumption that is susceptible to judicial
notice. There is no evidence to establish a causal
connection.
Petitioners' free speech rights must be weighed in
relation to the Fair Election Act's purpose of ensuring
political equality and, therefore, the speech of others who
want to participate unencumbered in our political spaces.
On one hand, there are petitioners' right to publish and
publications which are attended by the interests of those
who can employ published data to their partisan ends.
On the other, there is regulation that may effect equality
and, thus, strengthen the capacity of those on society's
margins or those who grope for resources to engage in
the democratic dialogue. The latter fosters the ideals of
deliberative democracy. It does not trump the former;
rather, it provides the environment where the survey
group's free speech rights should reside. cralawlawlibrary
 IX
Petitioners argue that Resolution No. 9674 violates
Article III, Section 10 of the 1987 Constitution.131 They
claim that it "unduly interferes with [their] existing
contracts . . . by forcing [them] to disclose information
that, under the contracts, is confidential or privileged."132
For its part, COMELEC argues that "[t]he non-impairment
clause of the Constitution must yield to the loftier
purposes sought to be achieved by the
government."133 It adds that "[petitioners' existing
contracts with third parties must be understood to have
been made in reference to the possible exercise of the
COMELEC's regulatory powers."134
It is settled that "the constitutional guaranty of non-
impairment... is limited by the exercise of the police
power of the State, in the interest of public health,
safety, morals and general welfare."135 "It is a basic rule
in contracts that the law is deemed written into the
contract between the parties."136 The incorporation of
regulations into contracts is "a postulate of the police
power of the State."137
The relation of the state's police power to the principle of
non-impairment of contracts was thoroughly explained
in Ortigas and Co. V. Feati Bank:138
[W]hile non-impairment of contracts is constitutionally
guaranteed, the rule is not absolute, since it has to be
reconciled with the legitimate exercise of police
power, i.e., "the power to prescribe regulations to
promote the health, morals, peace, education, good
order or safety and general welfare of the people."
Invariably described as "the most essential, insistent,
and illimitable of powers" and "in a sense, the greatest
and most powerful attribute of government," the exercise
of the power may be judicially inquired into and corrected
only if it is capricious, whimsical, unjust or unreasonable,
there having been a denial of due process or a violation
of any other applicable constitutional guarantee. As this
Court held through Justice Jose P. Bengzon in Philippine
Long Distance Company vs. City of Davao, et al. police
power "is elastic and must be responsive to various social
conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions;
it must follow the legal progress of a democratic way of
life." We were even more emphatic in Vda. de Genuino
vs. The Court of Agrarian Relations, et al, when We
declared: "We do not see why public welfare when
clashing with the individual right to property should not
be made to prevail through the state's exercise of its
police power."139 (Citations omitted)
This case does not involve a "capricious, whimsical,
unjust or unreasonable"140 regulation. We have
demonstrated that not only an important or substantial
state interest, but even a compelling one anchors
Resolution No. 9674's requirement of disclosing
subscribers to election surveys. It effects the
constitutional policy of "guarantee[ing] equal access to
opportunities for public service"141 and is impelled by the
imperative of "fair" elections.
As a valid exercise of COMELEC's regulatory powers,
Resolution No. 9674 is correctly deemed written into
petitioners' existing contracts.
Parenthetically, the obligations of agreements manifested
in the concept of contracts are creations of law. This right
to demand performance not only involves its requisites,
privileges, and regulation in the Civil Code or special
laws, but is also subject to the Constitution. The
expectations inherent in a contract may be compelling,
but so are the normative frameworks demanded by law
and the provisions of the Constitution.cralawlawlibrary
X candidates and the mass media entities the rules and
Petitioners point out that Section 13 of the Fair Election
Act provides that "[r]ules and regulations promulgated
by the COMELEC under and by authority of this
Section shall take effect on the seventh day after their
publication in at least two (2) daily newspapers of
general circulation." In contrast, Resolution No. 9674
provides that it "shall take effect immediately after
publication."142 Thus, they assert that Resolution No.
9674's effectivity clause is invalid. From this, they argue
that Resolution No. 9674 has not taken effect and cannot
be enforced against them or against other persons.143
COMELEC counters that Section 13 of the Fair Election
Act's provision that rules shall take effect "on the seventh
day after their publication" applies only to Resolution No.
9615, the Implementing Rules and Regulations (IRR) of
the Fair Election Act, and not to Resolution No. 9674,
which "merely enforces Section 26144 of Resolution No.
9615."145
Noting that Resolution No. 9674 was nevertheless
published in the Philippine Daily Inquirer and the
Philippine Star both on April 25, 2013, COMELEC adds
that, in any case, "the lapse of the seven-day period
from the date of its publication has rendered the instant
issue moot and academic."146
It is COMELEC which is in error on this score. Section 13
of the Fair Election Act reads:
Section 13. Authority of the COMELEC to Promulgate
Rules; Election Offenses. - The COMELEC shall
promulgate and furnish all political parties and
regulations for the implementation of this Act, consistent
with the criteria established in Article IX-C, Section 4 of
the Constitution and Section 86 of the Omnibus Election
Code (Batas Pambansa Bldg. 881).
Rules and regulations promulgated by the COMELEC
under and by authority of this Section shall take effect on
the seventh day after their publication in at least two (2)
daily newspapers of general circulation. Prior to
effectivity of said rules and regulations, no political
advertisement or propaganda for or against any
candidate or political party shall be published or
broadcast through mass media.
Violation of this Act and the rules and regulations of the
COMELEC issued to implement this Act shall be an
election offense punishable under the first and second
paragraphs of Section 264 of the Omnibus Election Code
(Batas Pambansa Bldg. 881). (Emphasis supplied)
Resolution No. 9615 is denominated "Rules and
Regulations Implementing Republic Act No. 9006,
otherwise known as the 'Fair Election Act', in connection
to [sic] the 13 May 2013 National and Local Elections,
and Subsequent Elections[.]"
The only conceivable reason that would lead COMELEC to
the conclusion that it is only Resolution No. 9615 (and
not the assailed Resolution No. 9674) that needs to
comply with the requirement of Section 13 of the Fair
Election Act is Section 13's use of the phrase "rules and
regulations for the implementation of this Act[.]" That is,
since Resolution No. 9615 is the Resolution which, by
name, is called the "Rules and Regulations Implementing
Republic Act No. 9006," COMELEC seems to think that
other rules named differently need not comply.
It is an error to insist on this literal reasoning.
Section 13 applies to all rules and regulations
implementing the Fair Election Act, regardless of how
they are denominated or called. COMELEC's further
reasoning that what Resolution No. 9674 intends to
implement is Resolution No. 9615 and not the Fair
Election Act itself is nothing but a circuitous denial of
Resolution No. 9674's true nature. COMELEC's reasoning
is its own admission that the assailed Resolution
supplements what the Implementing Rules and
Regulations of the Fair Election Act provides. Ultimately,
Resolution No. 9674 also implements the Fair Election
Act and must, thus, comply with the requirements of its
Section 13.
Accordingly, Resolution No. 9674 could not have become
effective as soon as it was published in the Philippine
Daily Inquirer and the Philippine Star on April 25, 2013.
Taking into consideration the seven-day period required
by Section 13, the soonest that it could have come into
effect was on May 2, 2013.
This notwithstanding, petitioners were not bound to
comply with the requirement "to submit within three (3)
days from receipt of this Resolution the names of all
commissioners and payors of surveys published from
February 12, 2013 to the date of the promulgation of this
Resolution[.]"147 As shall be discussed, COMELEC's
(continuing) failure to serve copies of Resolution No.
9674 on petitioners prevented this three-day period from
even commencing. cralawlawlibrary
XI
Petitioners point out that they were never served copies
of Resolution No. 9674. Thus, they claim that this
Resolution's self-stated three-day period within which
they must comply has not begun to run and that
COMELEC's insistence on their compliance violates their
right to due process. They add that COMELEC has also
failed to provide them with copies of the criminal
complaint subject of E.O. Case No. 13-222 for which the
Subpoena dated July 1, 2013 was issued against them.
COMELEC, however, insists that "[petitioners were given
fair notice of the Resolution"148 in that:
[t]he-Notice dated 08 May 2013 sent to and received by
petitioners not only makes reference to the Resolution by
its number and title but also indicates its date of
promulgation, the two newspapers of general circulation
in which it was published, it date of publication, and,
more important [sic], reproduces in full its dispositive
portion[.]149
COMELEC adds that, in any case, petitioners were "able
to secure a certified true copy of the [assailed]
Resolution."150 On the filing of a criminal complaint,
COMELEC asserts that attached to the Subpoena served
on petitioners was a copy of Resolution No. 13-0739 of
the COMELEC En Bane which "provides a verbatim
reproduction of the Memorandum of the Director of the
Law Department detailing petitioners' failure to comply
with the assailed Resolution and of the Memorandum of
Commissioner [Christian Robert S.] Lim submitting the
matter for the appropriate action of the COMELEC en
bane."151
COMELEC relies on infirm reasoning and reveals how, in
criminally charging petitioners, it acted arbitrarily,
whimsically, and capriciously, and violated petitioners'
right to due process.
By its own reasoning, COMELEC admits that petitioners
were never actually served copies of Resolution No.
9674 after it was promulgated on April 23, 2013. It
insists, however, that this flaw has been remedied by
service to petitioners of the May 8, 2013 Notice which
reproduced Resolution No. 9674's dispositive portion.
Dismembering an official issuance by producing only a
portion of it (even if the reproduced portion is the most
significant, i.e., dispositive, portion) is not the same as
serving on the concerned parties a copy of the official
issuance itself. Petitioners may have been informed of
what the dispositive portion stated, but it remains that
they were never notified and served copies of the
assailed Resolution itself. In Resolution No. 9674's own
words, compliance was expected "within three (3) days
from receipt of this Resolution[,]"152 not of its partial,
dismembered, reproduction.
Not having been served with copies of Resolution No.
9674 itself, petitioners are right in construing the three-
day period for compliance as not having begun to run.
From this, it follows that no violation of the requirement
"to submit within three (3) days from receipt of this
Resolution the names of all commissioners and payors of
surveys published from February 12, 2013 to the date of
the promulgation of this Resolution[.]"153 could have
been committed. Thus, there was no basis for
considering petitioners to have committed an election
offense arising from this alleged violation.
It is of no consequence that the May 8, 2013 Notice
warned petitioners that failure to comply with it "shall
constitute an election offense punishable under the first
and second paragraphs of Section 264 of the Omnibus
Election Code."154 It is true that the Omnibus Election
Code has been in force and effect long before Resolution
No. 9674 was promulgated; nevertheless, the supposed
violation of the Omnibus Election Code rests on
petitioners' alleged non-compliance with Resolution No.
9674. This is a matter which, as we have demonstrated,
is baseless, the three-day period for compliance not
having even commenced.
It is similarly inconsequential that petitioners were
subsequently able to obtain certified true copies of
Resolution No. 9674. Petitioners' own diligence in
complying with the formal requirements of Rule 65
petitions filed before this court cannot possibly be the
cure for COMELEC's inaction. These certified true copies
were secured precisely to enable petitioners to assail
COMELEC's actions, not to validate them. It would be
misguided to subscribe to COMELEC's suggestion that
petitioners' diligence should be their own undoing. To
accede to this would be to effectively intimidate parties
with legitimate grievances against government actions
from taking the necessary steps to comply with (formal)
requisites for judicial remedies and, ultimately, prevent
them from protecting their rights.
COMELEC's error is compounded by its failure to provide
petitioners with copies of the criminal complaint subject
of E.O. Case No. 13-222. COMELEC has neither alleged
nor proven that it has done so. Per its own allegations,
all it did was serve petitioners with the May 8, 2013
Notice and the July 1, 2013 Subpoena.

These facts considered, it was not only grave error, but

grave abuse of discretion, for COMELEC to pursue
unfounded criminal charges against petitioners. In so
doing, COMELEC violated petitioners' right to due
process.

WHEREFORE, the Petition is PARTIALLY GRANTED in

that COMELEC Resolution No. 9674 is upheld, and
respondent Commission on Elections is ENJOINED from
prosecuting petitioners Social Weather Stations, Inc. and
Pulse Asia, Inc. for their supposed violation of COMELEC
Resolution No. 9674 in respect of their non-submission of
the names of all commissioners and payors, including
subscribers, of surveys published during the campaign
period for the 2013 elections.

SO ORDERED. chanroblesvirtuallawlibrary

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro,

Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza,
Reyes, and Leonen, JJ., concur.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Jardeleza, J., no part, prior action as SolGen.
#9 SOCIAL WEATHER STATIONS, INC. VS. JUDGE MAXIMIANO C.
ASUNCION, REGIONAL TRIAL COURT, BRANCH 104, QUEZON CITY
A.M. No. RTJ-93-1049
FACTS: Published under the by-line of one Marichu Villanueva and titled
“Judiciary worse than PNP,” an item in the June 17, 1993 issue of the
Manila Standard, a metropolitan daily, reported that the results of the
latest opinion polls conducted by the Ateneo Social Weather Station, as
Social Weather Stations, Inc. (or SWS) is also known, showed the Judiciary
to have an even lower satisfaction rating that the Philippine National
Police. The item went on to state that the President and his Cabinet had
been briefed on the results of the survey by Professors Mahar Mangahas
and Felipe Miranda of the SWS, and that Malacanang had expressed
concern over the Judiciary’s law standing. Press Secretary Jesus Sison was
also quoted as saying that this was “most puzzling,” although he could not,
recall the exact rating, noting only that the PNP had “a better image that
the judiciary.”
Said report appears to have prompted Judge Maximiano C.
Asuncion, presiding judge of Branch 104 of the Regional Trial Court at
Quezon City, motu proprio to initiate on the same date of June 17, 1993
proceedings ordering the President of the SWS to: “explain why you should
not be held in contempt for distributing to the general public without prior
permission from any court your findings that the people have more
confidence with the police than with judges thereby tending directly or
indirectly to degrade the administration of justice”.
On June 21, 1993, Prof. Mahar Mangahas through Atty. Antonio
M. Abad, Jr. submitted his comment and explanation that it was not true
that the Social Weather Stations, Inc. distributed to the general public the
alleged survey. Said survey was privately given to Pres. Ramos and the
cabinet and was not intended for publication nor for public consumption
and that if ever it reaches the media, he had not authorized anyone to do
so.
The hearing was had a scheduled on June 23, 1993, after which
Judge Asuncion promulgated an Order dated July 2, 1993, finding Professor
Mangahas’ explanation satisfactory and dismissing the contempt charge
against him.
After three weeks or so, or more precisely on July 26, 1993,
Professor Mangahas addressed a letter to the Chief Justice intended “as a
formal complaint against Honorable Maximiano C. Asuncion for grave
abuse of authority and gross ignorance of the law, in connection with his
issuance of an Order dated 17 June 1993.
ISSUE: Whether the Order dated 17 June 1993 is violative of the
constitutional guarantees of freedom of speech and freedom from prior
restraint.
HELD: No.
What was clearly implicit in the newspaper report about the
results of the SWS poll - in the words of Judge Asuncion, “that the people
have more confidence with the police than with the judges” – in light of
the fact, of which judicial notice is taken, that said report came out at a
time when there already was widespread publicity adverse to the judiciary,
there can be no doubt of its clear tendency to degrade the administration
of justice.
Thus, Judge Asuncion can hardly be faulted for what, at a
minimum, he must have felt duty-bound to do in the circumstances. No
question of prior restraint or violation of the guarantee of free speech
arises here, what he did being, in essence, merely to initiate an inquiry
into the source and basis of the derogatory news report. And he
forthwith abated the proceedings upon receiving an explanation he
deemed satisfactory.
Upon the facts, and under applicable law and principle, the
complaint fails to make a prima facie showing of the charges made therein,
and must perforce be as it is hereby, DISMISSED.
G.R. No. 194578 February 13, 2013
PHILIP SIGFRID A. FORTUN, Petitioner,
vs.
PRIMA JESUSA B. QUINSAYAS, MA. GEMMA OQUENDO,
DENNIS AYON, NENITA OQUENDO, ESMAEL
MANGUDADATU, JOSE PAVIA, MELINDA QUINTOS DE
JESUS, REYNALDO HULOG, REDMOND BATARIO, MALOU
MANGAHAS, DANILO GOZO, GMA NETWORK INC., through
its new editors Raffy Jimenez and Victor Sollorano, SOPHIA
DEDACE, ABS-CBN CORPORATION, through the Head of its
News Group, Maria Ressa, CECILIA VICTORIA OREÑA-
DRILON, PHILIPPINE DAILY INQUIRER, INC. represented by
its Editor-in-Chief Letty Jimenez Magsanoc, TETCH TORRES,
PHILIPPINE STAR represented by its Editor-in-Chief Isaac
Belmonte, and EDU PUNAY, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for Contempt filed by Atty. Philip
Sigfrid A. Fortun (petitioner) against Atty. Prima Jesusa B.
Quinsayas (Atty. Quinsayas), Ma. Gemma Oquendo (Gemma),
Dennis Ayon (Ayon), Nenita Oquendo (Nenita), Esmael
Mangudadatu (Mangudadatu), Jose Pavia (Pavia), Melinda
Quintos De Jesus (De Jesus), Reynaldo Hulog (Hulog), Redmond
Batario (Batario), Malou Mangahas (Mangahas), and Danilo Gozo
(Gozo). Atty. Quinsayas and the other respondents, who are not
from the media, are referred to in this case as Atty. Quinsayas, et
al. Petitioner also named as respondents GMA Network, Inc.
(GMA Network) through its news editors Raffy Jimenez and Victor
Sollorano, Sophia Dedace (Dedace), ABS-CBN Corporation
(ABS-CBN) through the Head of its News Group Maria Ressa
(Ressa), Cecilia Victoria Oreña-Drilon (Drilon), Philippine Daily
Inquirer, Inc. (PDI) represented by its Editor-in-Chief Letty
Jimenez Magsanoc, Tetch Torres (Torres), Philippine Star
(PhilStar) represented by its Editor-in-Chief Isaac Belmonte, and
Edu Punay (Punay). Respondents Atty. Quinsayas, et al. and
respondent media groups and personalities are collectively
referred to in this case as respondents.
The Antecedent Facts
On 23 November 2009, a convoy of seven vehicles carrying the
relatives of then Maguindanao vice-mayor Esmael "Toto"
Mangudadatu, as well as lawyers and journalists, was on their
way to the Commission on Elections office in Shariff Aguak to file
Mangudadatu’s Certificate of Candidacy1 when they were
accosted by a group of about 100 armed men at a checkpoint in
Sitio Malating, Ampatuan town, some four to ten kilometers from
their destination.2 The group was taken hostage and brought to a
hilly and sparsely-populated part of Sitio Magating, Barangay
Salman, Ampatuan, Maguindanao.3 The gruesome aftermath of
the hostage-taking was later discovered and shocked the world.
The hostages were systematically killed by shooting them at
close range with automatic weapons, and their bodies and
vehicles were dumped in mass graves and covered with the use
of a backhoe.4 These gruesome killings became known as the
Maguindanao Massacre. A total of 57 victims were killed, 30 of
them journalists. Subsequently, criminal cases for Murder were
filed and raffled to the Regional Trial Court of Quezon City,
Branch 221, and docketed as Criminal Cases No. Q-09-162148-
172, Q-09-162216-31, Q-10-162652, and Q-10- 163766.
Petitioner is the counsel for Datu Andal Ampatuan, Jr.
(Ampatuan, Jr.), the principal accused in the murder cases.
In November 2010, Atty. Quinsayas, et al. filed a disbarment
complaint against petitioner before this Court, docketed as Bar
Matter No. A.C. 8827. The disbarment case is still pending.
Petitioner alleged that on 22 November 2010, GMA News TV
internet website posted an article, written by Dedace, entitled
"Mangudadatu, others seek disbarment of Ampatuan lawyer," a
portion of which reads:
On Monday, Maguindanao Governor Esmael "Toto"
Mangudadatu and four others filed a 33 page complaint against
lawyer Sigrid Fortun whom they accused of "engaging in every
conceivable chichancery or artifice to unduly delay the
proceedings by using and abusing legal remedies available."5
On even date, Inquirer.net, the website of PDI, also published an
article, written by Torres, which according to petitioner also stated
details of the disbarment case, as follows:
"Respondent Atty. Fortun had astutely embarked in an untiring
quest to obstruct, impede and degrade the administration of
justice by filing countless causes of action, all in the hope of
burying the principal issue of his client’s participation or guilt in
the murder of 57 people that ill-fated day of November 23, 2009,"
the petitioners said.6
Petitioner further alleged that on 23 November 2010, PhilStar
published an article, written by Punay, which gave details of the
disbarment allegations, thus:
"Attorney Fortun used and abused legal remedies available and
allowed under under the rules, muddled the issues and diverted
the attention away from the main subject matter of the cases,
read the complaint.
***** ***** *****
"Respondent Attorney Fortun’s act of misleading the prosecution
and trial court is a dishonest/deceitful conduct violative of Code of
Professional Responsibility," read the complaint.
"In so doing, he diminished the public confidence in the law and
the legal profession, rendering him unfit to be called a member of
the Bar."7
Further, petitioner alleged that on 23 November 2010, Channel
23 aired on national television a program entitled "ANC Presents:
Crying for Justice: the Maguindanao Massacre." Drilon, the
program’s host, asked questions and allowed Atty. Quinsayas to
discuss the disbarment case against petitioner, including its
principal points. Petitioner was allegedly singled out and identified
in the program as the lead counsel of the Ampatuan family.
Petitioner alleged that Atty. Quinsayas, et al. actively
disseminated the details of the disbarment complaint against him
in violation of Rule 139-B of the Rules of Court on the confidential
nature of disbarment proceedings. Petitioner further alleged that
respondent media groups and personalities conspired with Atty.
Quinsayas, et al. by publishing the confidential materials on their
respective media platforms. Petitioner pointed out that Drilon
discussed the disbarment complaint with Atty. Quinsayas in a
television program viewed nationwide
Petitioner alleged that the public circulation of the disbarment
complaint against him exposed this Court and its investigators to
outside influence and public interference. Petitioner alleged that
opinion writers wrote about and commented on the disbarment
complaint which opened his professional and personal reputation
to attack. He alleged that the purpose of respondents in
publishing the disbarment complaint was to malign his personal
and professional reputation, considering the following: (1) the
bases of the charges were not new but were based on incidents
that supposedly took place in January 2010; (2) it was timed to
coincide with the anniversary of the Maguindanao Massacre to
fuel hatred, contempt and scorn for Ampatuan, Jr. and his
counsel and violated the accused’s right to presumption of
innocence and due process; (3) it was published following articles
written about petitioner’s advocacy for the rights of an accused
and negated the impact of these articles on the public; and (4)
respondents knew that the charges were baseless as petitioner
always opted for speedy trial and protection of the accused’s
rights at trial. Petitioner further alleged that in announcing their
"causes of action" in the disbarment case, respondents were only
seeking the approval and sympathy of the public against him and
Ampatuan, Jr.
In its Comment, GMA Network alleged that it has no newspaper
or any publication where it could have printed the article. It
alleged that it did not broadcast the disbarment complaint on its
television station. GMA Network alleged that the publication had
already been done and completed when Atty. Quinsayas
distributed copies of the disbarment complaint and thus, the
members of the media who reported the news and the media
groups that published it on their website, including GMA Network,
did not violate the confidentiality rule. GMA Network further
alleged that Dedace, a field reporter for the judiciary, acted in
good faith and without malice when she forwarded the news to
the news desk. GMA News also acted in good faith in posting the
news on its website. GMA Network denied that it conspired with
the other respondents in publishing the news. GMA Network
alleged that it posted the disbarment complaint, without any
unfair, critical, and untruthful comment, and only after it was
"published" by Atty. Quinsayas, et al. who furnished copies of the
disbarment complaint to the media reporters. GMA Network
alleged that it had no intention to malign petitioner’s personal and
professional reputation in posting the news about the disbarment
complaint on its website.
In her Comment, Dedace clarified that she is a field news reporter
of GMA Network and not a writer of the GMA News TV website.
Her beat includes the Supreme Court, the Court of Appeals, and
the Department of Justice. Dedace alleged that on 22 November
2010, she received an advice from fellow field reporter Mark
Merueñas that the lawyer of Mangudadatu would be filing a
disbarment case against petitioner. She waited at the Supreme
Court. At around 5:00 p.m., Atty. Quinsayas arrived. Atty.
Quinsayas gave copies of the petition to news reporters and
Dedace received one. Dedace prepared and sent her news story
to GMA Network where it went to the editor. Dedace alleged that
she did not breach the rule on confidentiality of disbarment
proceedings against lawyers when she reported the filing of the
disbarment complaint against petitioner. She alleged that she
acted in good faith and without malice in forwarding her news
story to the news desk and that she had no intention to, and could
not, influence or interfere in the proceedings of the disbarment
case. She further alleged that she honestly believed that the filing
of the disbarment complaint against petitioner was newsworthy
and should be reported as news.
PDI alleged in its Comment that it shares content with the
Inquirer.net website through a syndication but the latter has its
own editors and publish materials that are not found on the
broadsheet. It alleged that Philippine Daily Inquirer, Inc. and
Inquirer Interactive, Inc. are two different corporations, with
separate legal personalities, and one may not be held responsible
for the acts of the other.
Torres8 alleged in her Comment that on 17 November 2010, a
private prosecutor told her and several other reporters that a
disbarment case would be filed against petitioner. The disbarment
case was actually filed on 22 November 2010 when Torres
received a copy of the complaint. Since the lead of the story
came from a lawyer, Torres did not consider that writing a story
about the filing of the disbarment complaint might amount to
contempt of court. Torres alleged that the writing of the story was
an independent act and she did not conspire with any of the other
respondents. Torres maintained that she acted in good faith in
writing the news report because the Maguindanao Massacre was
a matter of public concern and the allegations in the disbarment
complaint were in connection with petitioner’s handling of the
case. Torres further asserted that petitioner is a public figure and
the public has a legitimate interest in his doings, affairs and
character.
In her Comment, Ressa alleged that she was the former head of
ABS-CBN’s News and Current Affairs Group and the former
Managing Director of ANC. However, she was on terminal leave
beginning 30 October 2010 in advance to the expiration of her
contract on 3 January 2011. Ressa alleged that she had no
participation in the production and showing of the broadcast on
23 November 2010. Ressa adopts the answer of her co-
respondents ABS-CBN and Drilon insofar as it was applicable to
her case.
ABS-CBN and Drilon filed a joint Comment. ABS-CBN alleged
that ABS-CBN News Channel, commonly known as ANC, is
maintained and operated by Sarimanok Network News (SNN)
and not by ABS-CBN. SNN, which produced the program "ANC
Presents: Crying for Justice: the Maguindanao Massacre," is a
subsidiary of ABS-CBN but it has its own juridical personality
although SNN and ABS-CBN have interlocking directors. ABS-
CBN and Drilon alleged that the presentation and hosting of the
program were not malicious as there was no criminal intent to
violate the confidentiality rule in disbarment proceedings. They
alleged that the program was a commemoration of the
Maguindanao Massacre and was not a report solely on the
disbarment complaint against petitioner which took only a few
minutes of the one-hour program. They alleged that the program
was not a publication intended to embarrass petitioner who was
not even identified as the respondent in the disbarment
complaint. Drilon even cautioned against the revelation of
petitioner’s name in the program. ABS-CBN and Drilon further
alleged that prior to the broadcast of the program on 23
November 2010, the filing of the disbarment complaint against
petitioner was already the subject of widespread news and
already of public knowledge. They denied petitioner’s allegation
that they conspired with the other respondents in violating the
confidentiality rule in disbarment proceedings. Finally, they
alleged that the contempt charge violates their right to equal
protection because there were other reports and publications of
the disbarment complaint but the publishers were not included in
the charge. They also assailed the penalty of imprisonment
prayed for by petitioner as too harsh.
In their joint Comment, respondents Mangudadatu, Ayon, Nenita,
and Gemma alleged that petitioner failed to prove that they
actively participated in disseminating details of the disbarment
complaint against him. They alleged that while they were the
ones who filed the disbarment complaint against petitioner, it
does not follow that they were also the ones who caused the
publication of the complaint. They alleged that petitioner did not
provide the name of any particular person, dates, days or places
to show the alleged confederation in the dissemination of the
disbarment complaint.
Respondents De Jesus, Hulog, Batario, and Mangahas, in their
capacity as members of the Board of Trustees of the Freedom
Fund for Filipino Journalists, Inc. (FFFJ) and Atty. Quinsayas,
former counsel for FFFJ, also filed a joint Comment claiming that
the alleged posting and publication of the articles were not
established as a fact. Respondents alleged that petitioner did not
submit certified true copies of the articles and he only offered to
submit a digital video disk (DVD) copy of the televised program
where Atty. Quinsayas was allegedly interviewed by Drilon.
Respondents alleged that, assuming the articles were published,
petitioner failed to support his allegations that they actively
disseminated the details of the disbarment complaint.
In their joint Comment, PhilStar and Punay alleged that on 22
November 2010, Atty. Quinsayas, et al. went to this Court to file
the disbarment complaint but they were not able to file it on that
day.9 Atty. Quinsayas, et al. were able to file the disbarment
complaint the following day, or on 23 November 2010. PhilStar
and Punay alleged that their news article, which was about the
plan to file a disbarment complaint against petitioner, was
published on 23 November 2010. It came out before the
disbarment complaint was actually filed. They alleged that the
news article on the disbarment complaint is a qualified privileged
communication. They alleged that the article was a true, fair, and
accurate report on the disbarment complaint. The article was
straightforward, truthful, and accurate, without any comments
from the author. They alleged that Punay reported the plan of
Mangudadatu, et al. to file the disbarment complaint against
petitioner as it involved public interest and he perceived it to be a
newsworthy subject. They further alleged that assuming the news
article is not a privileged communication, it is covered by the
protection of the freedom of expression, speech, and of the press
under the Constitution. They also alleged that the case is a
criminal contempt proceeding and intent to commit contempt of
court must be shown by proof beyond reasonable doubt. They
further alleged that they did not commit any contemptible act.
They maintained that the news article did not impede, interfere
with, or embarrass the administration of justice. They further
claimed that it is improbable, if not impossible, for the article to
influence the outcome of the case or sway this Court in making its
decision. The article also did not violate petitioner’s right to
privacy because petitioner is a public figure and the public has a
legitimate interest in his doings, affairs, and character.
Pavia died during the pendency of this case10 and was no longer
included in the Comment filed for the FFFJ Trustees. Gozo
resigned as member of the FFFJ Trustees and was no longer
represented by the FFFJ counsel in filing its comment.11 Gozo did
not file a separate comment.
The Issue
The only issue in this case is whether respondents violated the
confidentiality rule in disbarment proceedings, warranting a
finding of guilt for indirect contempt of court.
The Ruling of this Court
First, the contempt charge filed by petitioner is in the nature of a
criminal contempt. In People v. Godoy,12 this Court made a
distinction between criminal and civil contempt. The Court
declared:
A criminal contempt is conduct that is directed against the dignity
and authority of the court or a judge acting judicially; it is an act
obstructing the administration of justice which tends to bring the
court into disrepute or disrespect. On the other hand, civil
contempt consists in failing to do something ordered to be done
by a court in a civil action for the benefit of the opposing party
therein and is, therefore, an offense against the party in whose
behalf the violated order is made.
A criminal contempt, being directed against the dignity and
authority of the court, is an offense against organized society and,
in addition, is also held to be an offense against public justice
which raises an issue between the public and the accused, and
the proceedings to punish it are punitive. On the other hand, the
proceedings to punish a civil contempt are remedial and for the
purpose of the preservation of the right of private persons. It has
been held that civil contempt is neither a felony nor a
misdemeanor, but a power of the court.
It has further been stated that intent is a necessary element in
criminal contempt, and that no one can be punished for a criminal
contempt unless the evidence makes it clear that he intended to
commit it. On the contrary, there is authority indicating that since
the purpose of civil contempt proceedings is remedial, the
defendant’s intent in committing the contempt is immaterial.
Hence, good faith or the absence of intent to violate the court’s
order is not a defense in civil contempt.13
The records of this case showed that the filing of the disbarment
complaint against petitioner had been published and was the
subject of a televised broadcast by respondent media groups and
personalities.
We shall discuss the defenses and arguments raised by
respondents.
GMA Network, Inc.
GMA Network’s defense is that it has no newspaper or any
publication where the article could be printed; it did not broadcast
the disbarment complaint in its television station; and that the
publication was already completed when Atty. Quinsayas
distributed copies of the disbarment complaint to the media.
GMA Network did not deny that it posted the details of the
disbarment complaint on its website. It merely said that it has no
publication where the article could be printed and that the news
was not televised. Online posting, however, is already publication
considering that it was done on GMA Network’s online news
website.
Philippine Daily Inquirer, Inc.
PDI averred that it only shares its contents with Inquirer.net
through a syndication. PDI attached a photocopy of the
syndication page stating that "[d]ue to syndication agreements
between PDI and Inquirer.net, some articles published in PDI
may not appear in Inquirer.net."14
A visit to the website describes Inquirer.net as "the official news
website of the Philippine Daily Inquirer, the Philippines’ most
widely circulated broadsheet, and a member of the Inquirer Group
of Companies."15 PDI was not able to fully establish that it has a
separate personality from Inquirer.net.
ABS-CBN Corporation
ABS-CBN alleged that SNN is its subsidiary and although they
have interlocking directors, SNN has its own juridical personality
separate from its parent company. ABS-CBN alleged that SNN
controls the line-up of shows of ANC.
We agree with ABS-CBN on this issue. We have ruled that a
subsidiary has an independent and separate juridical personality
distinct from that of its parent company and that any suit against
the the latter does not bind the former and vice-versa.16 A
corporation is an artificial being invested by law with a personality
separate and distinct from that of other corporations to which it
may be connected.17 Hence, SNN, not ABS-CBN, should have
been made respondent in this case.
Maria Ressa
Respondent Ressa alleged that she was on terminal leave when
the program about the Maguindanao Massacre was aired on ANC
and that she had no hand in its production. Ressa’s defense was
supported by a certification from the Human Resource Account
Head of ABS-CBN, stating that Ressa went on terminal leave
beginning 30 October 2010.18 This was not disputed by petitioner.
Sophia Dedace, Tetch Torres, Cecilia Victoria Oreña-Drilon,
and Edu Punay
Basically, the defense of respondents Dedace, Torres, Drilon,
and Punay was that the disbarment complaint was published
without any comment, in good faith and without malice; that
petitioner is a public figure; that the Maguindanao Massacre is a
matter of public interest; and that there was no conspiracy on
their part in publishing the disbarment complaint. They also
argued that the news reports were part of privileged
communication.
In Drilon’s case, she further alleged that the television program
was a commemoration of the Maguindanao Massacre and not
solely about the filing of the disbarment case against petitioner.
Even as the disbarment complaint was briefly discussed in her
program, petitioner’s name was not mentioned at all in the
program.
Violation of Confidentiality Rule by Respondent Media
Groups and Personalities
Section 18, Rule 139-B of the Rules of Court provides:
Section 18. Confidentiality. - Proceedings against attorneys shall
be private and confidential. However, the final order of the
Supreme Court shall be published like its decisions in other
cases.
The Court explained the purpose of the rule, as follows:
x x x. The purpose of the rule is not only to enable this Court to
make its investigations free from any extraneous influence or
interference, but also to protect the personal and professional
reputation of attorneys and judges from the baseless charges of
disgruntled, vindictive, and irresponsible clients and litigants; it is
also to deter the press from publishing administrative cases or
portions thereto without authority. We have ruled that malicious
and unauthorized publication or verbatim reproduction of
administrative complaints against lawyers in newspapers by
editors and/or reporters may be actionable. Such premature
publication constitutes a contempt of court, punishable by either a
fine or imprisonment or both at the discretion of the Court. x x x19
In People v. Castelo,20 the Court ruled that contempt is akin to
libel and that the principle of privileged communication may be
invoked in a contempt proceeding. The Court ruled:
While the present case involves an incident of contempt the same
is akin to a case of libel for both constitute limitations upon
freedom of the press or freedom of expression guaranteed by our
Constitution. So what is considered a privilege in one may
likewise be considered in the other. The same safeguard should
be extended to one whether anchored in freedom of the press or
freedom of expression. Therefore, this principle regarding
privileged communications can also be invoked in favor of
appellant.21
The Court recognizes that "publications which are privileged for
reasons of public policy are protected by the constitutional
guaranty of freedom of speech."22 As a general rule, disbarment
proceedings are confidential in nature until their final resolution
and the final decision of this Court. In this case, however, the
filing of a disbarment complaint against petitioner is itself a matter
of public concern considering that it arose from the Maguindanao
Massacre case. The interest of the public is not on petitioner
himself but primarily on his involvement and participation as
defense counsel in the Maguindanao Massacre case. Indeed, the
allegations in the disbarment complaint relate to petitioners
supposed actions involving the Maguindanao Massacre case.
The Maguindanao Massacre is a very high-profile case. Of the 57
victims of the massacre, 30 were journalists. It is understandable
that any matter related to the Maguindanao Massacre is
considered a matter of public interest and that the personalities
involved, including petitioner, are considered as public figure. The
Court explained it, thus:
But even assuming a person would not qualify as a public figure,
it would not necessarily follow that he could not validly be the
subject of a public comment. For he could; for instance, if and
when he would be involved in a public issue. If a matter is a
subject of public or general interest, it cannot suddenly become
less so merely because a private individual is involved or
because in some sense the individual did not voluntarily choose
to become involved. The public’s primary interest is in the
event; the public focus is on the conduct of the participant
and the content, effect and significance of the conduct, not
the participant’s prior anonymity or notoriety.23 (Boldface in
the original)
Since the disbarment complaint is a matter of public interest,
legitimate media had a right to publish such fact under freedom of
the press. The Court also recognizes that respondent media
groups and personalities merely acted on a news lead they
received when they reported the filing of the disbarment
complaint.
The distribution by Atty. Quinsayas to the media of the
disbarment complaint, by itself, is not sufficient to absolve the
media from responsibility for violating the confidentiality rule.
However, since petitioner is a public figure or has become a
public figure because he is representing a matter of public
concern, and because the event itself that led to the filing of the
disbarment case against petitioner is a matter of public concern,
the media has the right to report the filing of the disbarment case
as legitimate news. It would have been different if the disbarment
case against petitioner was about a private matter as the media
would then be bound to respect the confidentiality provision of
disbarment proceedings under Section 18, Rule 139-B of the
Rules of Court.
Section 18, Rule 139-B of the Rules of Court is not a restriction
on the freedom of the press. If there is a legitimate public
1âwphi1
interest, media is not prohibited from making a fair, true, and
accurate news report of a disbarment complaint. In the absence
of a legitimate public interest in a disbarment complaint, members
of the media must preserve the confidentiality of disbarment
proceedings during its pendency. Disciplinary proceedings
against lawyers must still remain private and confidential until
their final determination.24 Only the final order of this Court shall
be published like its decisions in other cases.25
Petitioner also failed to substantiate his claim that respondent
media groups and personalities acted in bad faith and that they
conspired with one another in their postings and publications of
the filing of a disbarment complaint against him. Respondent
media groups and personalities reported the filing of the
disbarment complaint without any comments or remarks but
merely as it was – a news item. Petitioner failed to prove that
respondent media groups and personalities acted with malicious
intent. Respondent media groups and personalities made a fair
and true news report and appeared to have acted in good faith in
publishing and posting the details of the disbarment complaint. In
the televised broadcast of the commemoration of the
Maguindanao Massacre over ANC, the disbarment case was
briefly discussed but petitioner was not named. There was also
no proof that respondent media groups and personalities posted
and published the news to influence this Court on its action on the
disbarment case or to deliberately destroy petitioner’s reputation.
It should also be remembered that the filing of the disbarment
case against petitioner entered the public domain without any act
on the part of the media. As we will discuss later, the members of
the media were given copies of the disbarment complaint by one
of the complainants.
Esmael Mangudadatu, Dennis Ayon, Nenita and Ma. Gemma
Oquendo
Respondents, while admitting that they were some of the
complainants in the disbarment complaint against petitioner,
alleged that there was no proof that they were the ones who
disseminated the disbarment complaint. Indeed, petitioner failed
to substantiate his allegation that Mangudadatu, Ayon, Nenita,
and Gemma were the ones who caused the publication of the
disbarment complaint against him. There was nothing in the
records that would show that Mangudadatu, Ayon, Nenita, and
Gemma distributed or had a hand in the distribution of the
disbarment complaint against petitioner.
Melinda Quintos De Jesus, Reynaldo Hulog, Redmond
Batario, Malou Mangahas, and Atty. Prima Jesusa B.
Quinsayas
Respondents De Jesus, Hulog, Batario, Mangahas, and Atty.
Quinsayas alleged that petitioner was not able to establish the
posting and publication of the articles about the disbarment
complaint, and that assuming the posting and publication had Indirect contempt against a Regional Trial Court or a court of
been established, petitioner failed to support his allegation that equivalent or higher rank is punishable by a fine not exceeding
they actively disseminated the details of the disbarment P30,000 or imprisonment not exceeding six months or
complaint. They further alleged that they did not cause the both.30 Atty. Quinsayas acted wrongly in setting aside the
publication of the news articles and thus, they did not violate the confidentiality rule which every lawyer and member of the legal
rule on privacy and confidentiality of disbarment proceedings. profession should know. Hence, we deem it proper to impose on
her a fine of Twenty Thousand Pesos (P20,000).
Indeed, petitioner failed to prove that, except for Atty. Quinsayas,
the other respondents, namely De Jesus, Hulog, Batario, WHEREFORE, we find Atty. Prima Jesusa B. Quinsayas GUILTY
Mangahas, and even Gozo, who did not file his separate of indirect contempt for distributing copies of the disbarment
comment, had a hand in the dissemination and publication of the complaint against Atty. Philip Sigfrid A. Fortun to members of the
disbarment complaint against him. It would appear that only Atty. media and we order her to pay a FINE of Twenty Thousand
Quinsayas was responsible for the distribution of copies of the Pesos (P20,000).
disbarment complaint. In its Comment, GMA Network stated that
the publication "had already been done and completed when SO ORDERED.
copies of the complaint for disbarment were distributed by
one of the disbarment complainants, Atty. Prima Quinsayas ANTONIO T. CARPIO
x x x."26 Dedace also stated in her Comment that "Atty. Associate Justice
Quinsayas gave copies of the disbarment complaint against Atty.
Fortun and she received one."27
WE CONCUR:
Atty. Quinsayas is bound by Section 18, Rule 139-B of the Rules
ARTURO D. BRION
of Court both as a complainant in the disbarment case against
Associate Justice
petitioner and as a lawyer. As a lawyer and an officer of the
Court, Atty. Quinsayas is familiar with the confidential nature of
disbarment proceedings. However, instead of preserving its MARIANO C. DEL
confidentiality, Atty. Quinsayas disseminated copies of the CASTILLO JOSE PORTUGAL PEREZ
disbarment complaint against petitioner to members of the media Associate Justice
which act constitutes contempt of court. In Relativo v. De
Leon,28 the Court ruled that the premature disclosure by
publication of the filing and pendency of disbarment proceedings
ESTELA M. PERLAS-BERNABE
is a violation of the confidentiality rule.29 In that case, Atty.
Associate Justice
Relativo, the complainant in a disbarment case, caused the
publication in newspapers of statements regarding the filing and
pendency of the disbarment proceedings. The Court found him ATTESTATION
guilty of contempt.
I attest 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’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the

Division Chairperson’s Attestation, 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’s
Division.

MARIA LOURDES P.A. SERENO

Chief Justice
G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF
THE PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH
UNDER SECRETARIES DR. ETHELYN P. NIETO, DR.
MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, &
DR. JADE F. DEL MUNDO; and ASSISTANT SECRETARIES
DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR.
NEMESIO T. GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best
nourishment for an infant is mother's milk. There is nothing
greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of course, for each and every
Filipino child to enjoy the unequaled benefits of breastmilk. But
how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the
Rules of Court, seeking to nullify Administrative Order (A.O.) No.
2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as
The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid as it
contains provisions that are not constitutional and go beyond the
law it is supposed to implement.
Named as respondents are the Health Secretary,
Undersecretaries, and Assistant Secretaries of the Department of
Health (DOH). For purposes of herein petition, the DOH is
deemed impleaded as a co-respondent since respondents issued
the questioned RIRR in their capacity as officials of said
executive agency.1
Executive Order No. 51 (Milk Code) was issued by President
Corazon Aquino on October 28, 1986 by virtue of the legislative
powers granted to the president under the Freedom Constitution.
One of the preambular clauses of the Milk Code states that the
law seeks to give effect to Article 112 of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), a code adopted by
the World Health Assembly (WHA) in 1981. From 1982 to 2006,
the WHA adopted several Resolutions to the effect that
breastfeeding should be supported, promoted and protected,
hence, it should be ensured that nutrition and health claims are
not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on
the Rights of the Child. Article 24 of said instrument provides that
State Parties should take appropriate measures to diminish infant
and child mortality, and ensure that all segments of society,
specially parents and children, are informed of the advantages of
breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which
was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members
that are manufacturers of breastmilk substitutes, filed the present
Petition for Certiorari and Prohibition with Prayer for the Issuance
of a Temporary Restraining Order (TRO) or Writ of Preliminary
Injunction.
The main issue raised in the petition is whether respondents
officers of the DOH acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in
promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a
TRO enjoining respondents from implementing the questioned
RIRR.
After the Comment and Reply had been filed, the Court set the
case for oral arguments on June 19, 2007. The Court issued an
Advisory (Guidance for Oral Arguments) dated June 5, 2007, to
wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the
Revised Implementing Rules and Regulations (RIRR)
issued by the Department of Health (DOH) is not
constitutional;
2.1 Whether the RIRR is in accord with the provisions of
Executive Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered
into by the Philippines are part of the law of the land and
may be implemented by the DOH through the RIRR; If in
the affirmative, whether the RIRR is in accord with the
international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the
RIRR violate the due process clause and are in restraint
of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect
provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the
Child; (2) the WHO and Unicef "2002 Global Strategy on
Infant and Young Child Feeding;" and (3) various World
Health Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this
case as the real party-in-interest, the Court adopts the view
enunciated in Executive Secretary v. Court of Appeals,4 to wit:
The modern view is that an association has standing to
complain of injuries to its members. This view fuses the
legal identity of an association with that of its
members. An association has standing to file suit for
its workers despite its lack of direct interest if its
members are affected by the action. An organization
has standing to assert the concerns of its
constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the
respondent was organized x x x to act as the
representative of any individual, company, entity or
association on matters related to the manpower
recruitment industry, and to perform other acts and
activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members,
because it and its members are in every practical
sense identical. x x x The respondent [association] is
but the medium through which its individual members
 seek to make more effective the expression of their
voices and the redress of their
grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v.
Yuipco,6 where the Court ruled that an association has the legal
personality to represent its members because the results of the
case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a
similar provision just like in Executive Secretary, that the
association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry
before the Philippine Government and any of its agencies, the
medical professions and the general public."8 Thus, as an
organization, petitioner definitely has an interest in fulfilling its
avowed purpose of representing members who are part of the
pharmaceutical and health care industry. Petitioner is duly
authorized9 to take the appropriate course of action to bring to the
attention of government agencies and the courts any grievance
suffered by its members which are directly affected by the RIRR.
Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be remiss in
its duties if it fails to act on governmental action that would affect
any of its industry members, no matter how few or numerous they
are. Hence, petitioner, whose legal identity is deemed fused with
its members, should be considered as a real party-in-interest
which stands to be benefited or injured by any judgment in the
present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international
instruments adverted to by respondents are part of the law of the
land.
Petitioner assails the RIRR for allegedly going beyond the
provisions of the Milk Code, thereby amending and expanding the
coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international
instruments10 regarding infant and young child nutrition. It is
respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may
implement them through the RIRR.
The Court notes that the following international instruments
invoked by respondents, namely: (1) The United Nations
Convention on the Rights of the Child; (2) The International
Covenant on Economic, Social and Cultural Rights; and (3) the
Convention on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that steps must be
taken by State Parties to diminish infant and child mortality and
inform society of the advantages of breastfeeding, ensure the
health and well-being of families, and ensure that women are
provided with services and nutrition in connection with pregnancy
and lactation. Said instruments do not contain specific provisions
regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions
regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.
Under the 1987 Constitution, international law can become part of
the sphere of domestic law either
by transformation or incorporation.11 The transformation
method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have the
force of domestic law.12
Treaties become part of the law of the land
through transformation pursuant to Article VII, Section 21 of the
Constitution which provides that "[n]o treaty or international
agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." Thus, treaties
or conventional international law must go through a process
prescribed by the Constitution for it to be transformed into
municipal law that can be applied to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have
not been concurred in by at least two-thirds of all members of the
Senate as required under Section 21, Article VII of the 1987
Constitution.
However, the ICMBS which was adopted by the WHA in 1981
had been transformed into domestic law through local legislation,
the Milk Code. Consequently, it is the Milk Code that has the
force and effect of law in this jurisdiction and not the ICMBS per
se.
The Milk Code is almost a verbatim reproduction of the ICMBS,
but it is well to emphasize at this point that the Code did not adopt
the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of
products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are
duly authorized and approved by the Inter-Agency
Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution,
to wit:
SECTION 2. The Philippines renounces war as an
instrument of national policy, adopts the generally
accepted principles of international law as part of the
law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all
nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by
virtue of the incorporation clause of the Constitution, form
part of the laws of the land even if they do not derive from
treaty obligations. The classical formulation in
international law sees those customary rules accepted as
binding result from the combination [of] two elements: the
established, widespread, and consistent practice on the
part of States; and a psychological element known as the
opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the
existence of a rule of law requiring it.16 (Emphasis
supplied)
"Generally accepted principles of international law" refers to
norms of general or customary international law which are binding
on all states,17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity,18 a person's
right to life, liberty and due process,19 and pacta sunt
servanda,20 among others. The concept of "generally accepted
principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general
principles of law" as a primary source of international law
because they have the "character of jus rationale" and are
"valid through all kinds of human societies." (Judge Tanaka
in his dissenting opinion in the 1966 South West Africa Case,
1966 I.C.J. 296). O'Connell holds that certain priniciples are part
of international law because they are "basic to legal systems
generally" and hence part of the jus gentium. These
principles, he believes, are established by a process of reasoning
based on the common identity of all legal systems. If there should
be doubt or disagreement, one must look to state practice and
determine whether the municipal law principle provides a just and
acceptable solution. x x x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as
follows:
Custom or customary international law means "a general
and consistent practice of states followed by them from a
sense of legal obligation [opinio juris]."
(Restatement) This statement contains the two basic
elements of custom: the material factor, that is, how
states behave, and the psychological or subjective
factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom
is the actual behavior of states. This includes several
elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element.
More important is the consistency and the generality of
the practice. x x x
xxxx
Once the existence of state practice has been
established, it becomes necessary to determine why
states behave the way they do. Do states behave the way
they do because they consider it obligatory to behave
thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain
form of behavior is obligatory, is what makes practice
an international rule. Without it, practice is not
law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into
our domestic system.23
WHA Resolutions have not been embodied in any local
legislation. Have they attained the status of customary law and
should they then be deemed incorporated as part of the law of the
land?
The World Health Organization (WHO) is one of the international
specialized agencies allied with the United Nations (UN) by virtue
of Article 57,24 in relation to Article 6325 of the UN Charter. Under
the 1946 WHO Constitution, it is the WHA which determines the
policies of the WHO,26 and has the power to adopt regulations
concerning "advertising and labeling of biological, pharmaceutical
and similar products moving in international commerce,"27 and to
"make recommendations to members with respect to any matter
within the competence of the Organization."28 The legal effect of
its regulations, as opposed to recommendations, is quite different.
Regulations, along with conventions and agreements, duly
adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to
adopt conventions or agreements with respect to any
matter within the competence of the Organization. A two-
thirds vote of the Health Assembly shall be required for
the adoption of such conventions or agreements,
which shall come into force for each Member when
accepted by it in accordance with its constitutional
processes.
Article 20. Each Member undertakes that it will, within
eighteen months after the adoption by the Health
 Assembly of a convention or agreement, take action
relative to the acceptance of such convention or
agreement. Each Member shall notify the Director-
General of the action taken, and if it does not accept such
convention or agreement within the time limit, it will
furnish a statement of the reasons for non-acceptance. In
case of acceptance, each Member agrees to make an
annual report to the Director-General in accordance with
Chapter XIV.
Article 21. The Health Assembly shall have authority to
adopt regulations concerning: (a) sanitary and quarantine
requirements and other procedures designed to prevent
the international spread of disease; (b) nomenclatures
with respect to diseases, causes of death and public
health practices; (c) standards with respect to diagnostic
procedures for international use; (d) standards with
respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in
international commerce; (e) advertising and labeling of
biological, pharmaceutical and similar products moving in
international commerce.
Article 22. Regulations adopted pursuant to Article
21 shall come into force for all Members after due notice
has been given of their adoption by the Health Assembly
except for such Members as may notify the Director-
General of rejection or reservations within the period
stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the
WHA do not come into force for members, in the same way
that conventions or agreements under Article 19 and regulations
under Article 21 come into force. Article 23 of the WHO
Constitution reads:
Article 23. The Health Assembly shall have authority to
make recommendations to Members with respect to any
matter within the competence of the Organization.
(Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by
which the recommendation would come into force for member
states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated
that WHA recommendations are generally not binding, but they
"carry moral and political weight, as they constitute the judgment
on a health issue of the collective membership of the highest
international body in the field of health."29 Even the ICMBS itself
was adopted as a mere recommendation, as WHA Resolution
No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x
adopts, in the sense of Article 23 of the Constitution,
the International Code of Marketing of Breastmilk
Substitutes annexed to the present resolution." (Emphasis
supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health
Organization at its sixty-seventh session, considered the
fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly
the text of a resolution by which it would adopt the code
in the form of a recommendation rather than a
regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is
summarized in Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action
taken with respect to recommendations made to it by the
 Organization, and with respect to conventions,
agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and
subsequent WHA Resolutions urging member states to
implement the ICMBS are merely recommendatory and legally
non-binding. Thus, unlike what has been done with the ICMBS
whereby the legislature enacted most of the provisions into
law which is the Milk Code, the subsequent WHA
Resolutions,30 specifically providing for exclusive
breastfeeding from 0-6 months, continued breastfeeding up
to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted
as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law"
or non-binding norms, principles and practices that influence state
behavior.31
"Soft law" does not fall into any of the categories of international
law set forth in Article 38, Chapter III of the 1946 Statute of the
International Court of Justice.32 It is, however, an expression of
non-binding norms, principles, and practices that influence state
behavior.33 Certain declarations and resolutions of the UN
General Assembly fall under this category.34 The most notable is
the UN Declaration of Human Rights, which this Court has
enforced in various cases, specifically, Government of Hongkong
Special Administrative Region v. Olalia,35 Mejoff v. Director of
Prisons,36 Mijares v. Rañada37 and Shangri-la International Hotel
Management, Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a
specialized agency attached to the UN with the mandate to
promote and protect intellectual property worldwide, has resorted
to soft law as a rapid means of norm creation, in order "to reflect
and respond to the changing needs and demands of its
constituents."39 Other international organizations which have
resorted to soft law include the International Labor Organization
and the Food and Agriculture Organization (in the form of
the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time
of the Severe Acute Respiratory Syndrome (SARS) and Avian flu
outbreaks.
Although the IHR Resolution does not create new
international law binding on WHO member states, it
provides an excellent example of the power of "soft
law" in international relations. International lawyers
typically distinguish binding rules of international
law-"hard law"-from non-binding norms, principles,
and practices that influence state behavior-"soft law."
WHO has during its existence generated many soft
law norms, creating a "soft law regime" in
international governance for public health.
The "soft law" SARS and IHR Resolutions represent
significant steps in laying the political groundwork for
improved international cooperation on infectious diseases.
These resolutions clearly define WHO member states'
normative duty to cooperate fully with other countries and
with WHO in connection with infectious disease
surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in
the wake of the SARS epidemic, the duty is powerful
politically for two reasons. First, the SARS outbreak has
taught the lesson that participating in, and enhancing,
international cooperation on infectious disease controls is
in a country's self-interest x x x if this warning is heeded,
the "soft law" in the SARS and IHR Resolution could
inform the development of general and consistent state
practice on infectious disease surveillance and outbreak
response, perhaps crystallizing eventually into customary
international law on infectious disease prevention and
control.41
In the Philippines, the executive department implemented certain
measures recommended by WHO to address the outbreaks of
SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on
April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating
to various departments broad powers to close down
schools/establishments, conduct health surveillance and
monitoring, and ban importation of poultry and agricultural
products.
It must be emphasized that even under such an international
emergency, the duty of a state to implement the IHR Resolution
was still considered not binding or enforceable, although said
resolutions had great political influence.
As previously discussed, for an international rule to be considered
as customary law, it must be established that such rule is being
followed by states because they consider it obligatory to
comply with such rules (opinio juris). Respondents have not
presented any evidence to prove that the WHA Resolutions,
although signed by most of the member states, were in fact
enforced or practiced by at least a majority of the member states;
neither have respondents proven that any compliance by member
states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent
WHA Resolutions are customary international law that may be
deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions
of the WHA Resolutions into domestic law. The provisions of
the WHA Resolutions cannot be considered as part of the
law of the land that can be implemented by executive
agencies without the need of a law enacted by the
legislature.
Second, the Court will determine whether the DOH may
implement the provisions of the WHA Resolutions by virtue of its
powers and functions under the Revised Administrative Code
even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code
of 1987 provides that the DOH shall define the national health
policy and implement a national health plan within the framework
of the government's general policies and plans, and issue orders
and regulations concerning the implementation of
established health policies.
It is crucial to ascertain whether the absolute prohibition on
advertising and other forms of promotion of breastmilk substitutes
provided in some WHA Resolutions has been adopted as part of
the national health policy.
Respondents submit that the national policy on infant and young
child feeding is embodied in A.O. No. 2005-0014, dated May 23,
2005. Basically, the Administrative Order declared the following
policy guidelines: (1) ideal breastfeeding practices, such as early
initiation of breastfeeding, exclusive breastfeeding for the first six
months, extended breastfeeding up to two years and beyond; (2)
appropriate complementary feeding, which is to start at age six
months; (3) micronutrient supplementation; (4) universal salt
iodization; (5) the exercise of other feeding options; and (6)
feeding in exceptionally difficult circumstances. Indeed, the
primacy of breastfeeding for children is emphasized as a national
health policy. However, nowhere in A.O. No. 2005-0014 is it
declared that as part of such health policy, the advertisement
or promotion of breastmilk substitutes should be absolutely
prohibited.
The national policy of protection, promotion and support of
breastfeeding cannot automatically be equated with a total ban on
advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain
a total ban on the advertising and promotion of breastmilk
substitutes, but instead, specifically creates an IAC which will up to the age of th
regulate said advertising and promotion, it follows that a total ban
policy could be implemented only pursuant to a law amending 2. The Milk Code recognizes that infant formula may be a
the Milk Code passed by the constitutionally authorized branch of proper and possible substitute for breastmilk in certain
government, the legislature. instances; but the RIRR provides "exclusive breastfeeding
for infants from 0-6 months" and declares that "there is no
Thus, only the provisions of the Milk Code, but not those of substitute nor replacement for breastmilk":
subsequent WHA Resolutions, can be validly implemented by
the DOH through the subject RIRR.
MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 4. Declar
Third, the Court will now determine whether the provisions of the
adequate nutrition for infants is provided, there following are the u
RIRR are in accordance with those of the Milk Code.
is a need to protect and promote breastfeeding which the revised
and to inform the public about the proper use premised upon:
In support of its claim that the RIRR is inconsistent with the Milk of breastmilk substitutes and supplements and
Code, petitioner alleges the following: related products through adequate, consistent a. Exclusive breas
and objective information and appropriate to six (6) months.
1. The Milk Code limits its coverage to children 0-12 regulation of the marketing and distribution of
months old, but the RIRR extended its coverage to the said substitutes, supplements and related b. There is no sub
"young children" or those from ages two years old and products; breastmilk.
beyond:

3. The Milk Code only regulates and does not impose

MILK CODE RIRR
unreasonable requirements for advertising and promotion;
WHEREAS, in order to ensure that safe and Section 2. Purpose – These
RIRR imposesRevised Rules ban on such activities for
an absolute
adequate nutrition for infants is provided, there
and Regulations are hereby promulgated to
breastmilk substitutes intended for infants from 0-24
is a need to protect and promote breastfeedingensure the provision of safe and adequate
months old or beyond, and forbids the use of health and
and to inform the public about the proper use nutrition for infantsnutritional
and young children
claims. by the13 of the RIRR, which provides
Section
of breastmilk substitutes and supplements and promotion, protection and support of
for a "total effect" in the promotion of products within the
related products through adequate, consistent breastfeeding andscopeby ensuring the proper
of the Code, use
is vague:
and objective information and appropriate of breastmilk substitutes, breastmilk
regulation of the marketing and distribution of
supplements and related products when these
the said substitutes, supplements and related are medically indicated and MILK
onlyCODE
when RIRR
products; SECTION
necessary, on the basis of adequate 6. The General Public and Section 4. Declar
Mothers. –
information and through appropriate marketing following are the u
SECTION 4(e). "Infant" means a person falling and distribution. which the revised
within the age bracket of 0-12 months. (a) No advertising, promotion or other premised upon:
Section 5(ff). "Young Child" marketing
means a materials,
person whether written, audio or
from the age of more than twelve (12) monthswithin the scope of this
visual, for products
Code shall be printed, published, distributed, xxxx a. Texts, pictures,
exhibited and broadcast unless such materials which discourage
are duly authorized and approved by an inter- f. Advertising, promotions, or sponsor-ships of benefits or superio
agency committee created herein pursuant to infant formula, breastmilk substitutes and other which idealize the
the applicable standards provided for in this related products are prohibited. and milk suppleme
Code. pictures of babies
Section 11. Prohibition – No advertising, their mothers, fath
promotions, sponsorships, or marketing other relatives or c
materials and activities for breastmilk used in any advert
substitutes intended for infants and young and breastmilk sup
children up to twenty-four (24) months, shall be
allowed, because they tend to convey or give b. The term "huma
subliminal messages or impressions that "close to mother's
undermine breastmilk and breastfeeding or describing breastm
otherwise exaggerate breastmilk substitutes supplements;
and/or replacements, as well as related
products covered within the scope of this c. Pictures or texts
Code. infant and milk form

Section 13. "Total Effect" - Promotion of Section 16. All he

products within the scope of this Code must be products within the
objective and should not equate or make the absolutely prohibit
product appear to be as good or equal to phrase or words th
breastmilk or breastfeeding in the advertising emotional, intellec
concept. It must not in any case undermine young child and ot
breastmilk or breastfeeding. The "total effect" allowed.
should not directly or indirectly suggest that
buying their product 4. would produce
The RIRR better
imposes additional labeling requirements not
individuals, or resulting in greater love,
found in the Milk Code:
intelligence, ability, harmony or in any manner
bring better health to the baby or other such
MILK CODE RIRR
exaggerated and unsubstantiated claim.
SECTION 10. Containers/Label. – Section 26. Conte
Section 15. Content of Materials. - The shall contain such
(a) Containers and/or
following shall not be included in advertising, labels shall be designed and English langua
to provide
promotional and marketing materials: the necessary information about the cannot be readily s
appropriate use of the products, and in such a the following point
 way as not to discourage breastfeeding. (a) The words or phrase "Important
preclude the Notice"
dissemination
or of information to participating as sp
"Government Warning" orhealth professionals as provided in Section
their equivalent; seminars for wome
(b) Each container shall have a clear, 8(b). to avoid the use of
conspicuous and easily readable and (b) A statement of the superiority of their brands or com
understandable message in Pilipino or English breastfeeding; SECTION 8. Health Workers. -
printed on it, or on a label, which message can SECTION 16. All h
not readily become separated from it, and (c) A statement that there (b)is noInformation
substituteprovided
for by manufacturers and products within the
which shall include the following points: breastmilk; distributors to health professionals regarding absolutely prohibit
products within the scope of this Code shall be phrase or words th
(i) the words "Important Notice" or their restricted
(d) A statement that the product to be
shall scientific
used and factual matters and emotional, intellect
equivalent; suchworker
only on the advice of a health information shall not imply or create a
as to the young child and ot
belief methods
need for its use and the proper that bottle-feeding
of is equivalent or allowed.
(ii) a statement of the superiority of use; superior to breastfeeding. It shall also include
breastfeeding; the information specified in Section 5(b).
(e) Instructions for appropriate prepara-tion,
6. The
(iii) a statement that the product shall be used and a warning against theMilk Code
health permits
hazards ofmilk manufacturers and
distributors
only on the advice of a health worker as to the inappropriate preparation; and to extend assistance in research and
need for its use and the proper methods of continuing education of health professionals; RIRR
use; and absolutely
(f) The health hazards forbids theorsame.
of unnecessary
improper use of infant formula and other
(iv) instructions for appropriate preparation, related products includingMILK information
CODEthat RIRR
and a warning against the health hazards of powdered infant formula may contain
SECTION 8. Health Workers – Section 4. Declar
inappropriate preparation. pathogenic microorganisms and must be
prepared and used appropriately.
(e) Manufacturers and distributors of products The following are t
within the scope of this Code may assist in the from which the rev
5. The Milk Code allows dissemination of information on research, scholarships and continuing are premised upon
infant formula to health professionals; the RIRR totally education, of health professionals, in
prohibits such activity: accordance with the rules and regulations i. Milk companies,
promulgated by the Ministry of Health. representatives, sh
MILK CODE RIRR policymaking body
SECTION 7. Health Care System. – Section 22. No manufacturer, distributor, or advancement of br
representatives of products covered by the
(b) No facility of the health care system shall Code shall be allowed to conduct or be SECTION 22. No m
be used for the purpose of promoting infant involved in any activity on breastfeeding representatives of
formula or other products within the scope of promotion, education and production of Code shall be allow
this Code. This Code does not, however, Information, Education and Communication involved in any act
(IEC) materials on breastfeeding, holding of or promotion, educati
 Information, Education and Communication donation be accep
(IEC) materials on breastfeeding, holding of or
participating as speakers in classes
8. The RIRR or for administrative sanctions not
provides
seminars for women and children activities
imposed by the Milk Code. and
to avoid the use of these venues to market
their brands or company names.
MILK CODE RIRR
SECTION 32. Primary Responsibility of Section 46. Admi
Health Workers - It is the primary following administr
responsibility of the health workers to promote, imposed upon any
protect and support breastfeeding and found to have viola
appropriate infant and young child feeding. Code and its imple
Part of this responsibility is to continuously Regulations:
update their knowledge and skills on
breastfeeding. No assistance, support, logistics a) 1st violation – W
or training from milk companies shall be
permitted. b) 2nd violation – A
minimum of Ten T
7. The Milk Code regulates the giving of donations; RIRR Fifty Thousand (P5
absolutely prohibits it. depending on the g
violation, including
product;
MILK CODE RIRR
SECTION 6. The General Public and Section 51. Donations Within the Scope of c) 3rd violation – Ad
Mothers. – This Code - Donations of products, materials, minimum of Sixty T
defined and covered under the Milk Code and One Hundred Fifty
(f) Nothing herein contained shall prevent these implementing rules and regulations, shall Pesos, depending
donations from manufacturers and distributors be strictly prohibited. the violation, and i
of products within the scope of this Code upon of the offending pr
request by or with the approval of the Ministry Section 52. Other Donations By Milk Certificate of Produ
of Health. Companies Not Covered by this Code. -
Donations of products, equipments, and the d) 4th violation –Ad
like, not otherwise falling within the scope of minimum of Two H
this Code or these Rules, given by milk (P200,000.00) to F
companies and their agents, representatives, Thousand Pesos,
whether in kind or in cash, may only be and extent of the v
coursed through the Inter Agency Committee thereto, the recall o
(IAC), which shall determine whether such the CPR, suspens
 Operate (LTO) for SECTION
one year; 3. Scope of the Code – The Code applies to
the marketing, and practices related thereto, of the
e) 5th and succeedingfollowing products:
repeated breastmilk
violations – substitutes, including infant
formula; other
Administrative Fine of One Million milk products, foods and beverages,
including bottle-fed
(P1,000,000.00) Pesos, the recall of the complementary foods, when marketed
or otherwise represented
offending product, cancellation of the CPR, to be suitable, with or without
modification, for use
revocation of the License to Operate (LTO) of as a partial or total replacement of
breastmilk;
the company concerned, including the feeding bottles and teats. It also applies to
their quality
blacklisting of the company andfurnished
to be availability,
theand to information concerning
their use.
Department of Budget and Management
(DBM) and the Department of Trade and
Clearly, the coverage of the Milk Code is not dependent on the
Industry (DTI);
age of the child but on the kind of product being marketed to the
public.
f) An additional The law
penalty of treats infant formula,
Two Thou-sand Five bottle-fed complementary
Hundred (P2,500.00) Pesos per day shall beseparate and distinct product
food, and breastmilk substitute as
categories.
made for every day the violation continues
after having received the order from the IAC or
other suchSection 4(h) of
appropriate the notifying
body, Milk Codeand defines infant formula as "a
breastmilk substitute x
penalizing the company for the infraction.x x to satisfy the normal nutritional
requirements of infants up to between four to six months of age,
For purposesandofadapted to their
determining physiological
whether or not characteristics"; while under
Section 4(b), bottle-fed
there is "repeated" violation, each productcomplementary food refers to "any food,
whether manufactured
violation belonging or owned by a company, or locally prepared, suitable as a
complement to breastmilk
including those of their subsidiaries, are or infant formula, when either becomes
insufficient to satisfy the nutritional
deemed to be violations of the concerned milk requirements of the infant." An
company and infant under
shall not Section
be based 4(e)
onisthea person falling within the age bracket
0-12 months.
specific violating productItalone.
is the nourishment of this group of infants or
children aged 0-12 months that is sought to be promoted and
protected by the Milk Code.
9. The RIRR provides for repeal of existing laws to the
contrary.
But there is another target group. Breastmilk substitute is defined
under Section 4(a) as "any food being marketed or otherwise
The Court shall resolve the merits of the allegations of
presented as a partial or total replacement for breastmilk, whether
petitioner seriatim. or not suitable for that purpose." This section conspicuously
lacks reference to any particular age-group of children.
1. Petitioner is mistaken in its claim that the Milk Code's coverage Hence, the provision of the Milk Code cannot be considered
is limited only to children 0-12 months old. Section 3 of the Milk exclusive for children aged 0-12 months. In other words,
Code states: breastmilk substitutes may also be intended for young children
more than 12 months of age. Therefore, by regulating breastmilk
substitutes, the Milk Code also intends to protect and promote the
nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the
scope of the Milk Code as provided in Section 3, then it can be
subject to regulation pursuant to said law, even if the product is to
be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and
5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the
Milk Code, does not recognize that breastmilk substitutes may be
a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof,
must be considered and construed together. As held in De Luna
v. Pascual,44 "[t]he particular words, clauses and phrases in the
Rule should not be studied as detached and isolated expressions,
but the whole and every part thereof must be considered in fixing
the meaning of any of its parts and in order to produce a
harmonious whole."
Section 7 of the RIRR provides that "when medically indicated
and only when necessary, the use of breastmilk substitutes is
proper if based on complete and updated information." Section 8
of the RIRR also states that information and educational materials
should include information on the proper use of infant formula
when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that
in certain cases, the use of breastmilk substitutes may be
proper.
3. The Court shall ascertain the merits of allegations 345 and
446 together as they are interlinked with each other.
To resolve the question of whether the labeling requirements and
advertising regulations under the RIRR are valid, it is important to
deal first with the nature, purpose, and depth of the regulatory
powers of the DOH, as defined in general under the 1987
Administrative Code,47 and as delegated in particular under the
Milk Code.
Health is a legitimate subject matter for regulation by the DOH
(and certain other administrative agencies) in exercise of police
powers delegated to it. The sheer span of jurisprudence on that
matter precludes the need to further discuss it..48 However, health
information, particularly advertising materials on apparently non-
toxic products like breastmilk substitutes and supplements, is a
relatively new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the
Philippine Islands,50 health information was already within the
ambit of the regulatory powers of the predecessor of
DOH.51 Section 938 thereof charged it with the duty to protect the
health of the people, and vested it with such powers as "(g) the
dissemination of hygienic information among the people
and especially the inculcation of knowledge as to the proper
care of infants and the methods of preventing and combating
dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked
respondent DOH to carry out the state policy pronounced under
Section 15, Article II of the 1987 Constitution, which is "to protect
and promote the right to health of the people and instill health
consciousness among them."52 To that end, it was granted under
Section 3 of the Administrative Code the power to "(6) propagate
health information and educate the population on important
health, medical and environmental matters which have health
implications."53
When it comes to information regarding nutrition of infants and
young children, however, the Milk Code specifically delegated to
the Ministry of Health (hereinafter referred to as DOH) the power
to ensure that there is adequate, consistent and objective
information on breastfeeding and use of breastmilk substitutes,
supplements and related products; and the power to control such
information. These are expressly provided for in Sections 12 and
5(a), to wit:
SECTION 12. Implementation and Monitoring –
xxxx
(b) The Ministry of Health shall be principally responsible
for the implementation and enforcement of the provisions
of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:
(1) To promulgate such rules and regulations as
are necessary or proper for the implementation of
this Code and the accomplishment of its purposes
and objectives.
xxxx
(4) To exercise such other powers and functions
as may be necessary for or incidental to the
attainment of the purposes and objectives of this
Code.
SECTION 5. Information and Education –
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for
use by families and those involved in the field of infant
nutrition. This responsibility shall cover the planning,
provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis
supplied)
Further, DOH is authorized by the Milk Code to control the
content of any information on breastmilk vis-à-vis breastmilk
substitutes, supplement and related products, in the following
manner:
SECTION 5. x x x
(b) Informational and educational materials, whether
written, audio, or visual, dealing with the feeding of infants
and intended to reach pregnant women and mothers of
infants, shall include clear information on all the following
points: (1) the benefits and superiority of breastfeeding;
(2) maternal nutrition, and the preparation for and
maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the
difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula,
whether manufactured industrially or home-
prepared. When such materials contain information
about the use of infant formula, they shall include the
social and financial implications of its use; the health
hazards of inappropriate foods or feeding methods;
and, in particular, the health hazards of unnecessary
or improper use of infant formula and other
breastmilk substitutes. Such materials shall not use
any picture or text which may idealize the use of
breastmilk substitutes.
SECTION 8. Health Workers –
xxxx
(b) Information provided by manufacturers and distributors
to health professionals regarding products within the
scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply
or create a belief that bottlefeeding is equivalent or
 superior to breastfeeding. It shall also include the
information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide
the necessary information about the appropriate use of
the products, and in such a way as not to discourage
breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms
shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the
information and to whom such information may be disseminated
under Sections 6 through 9 of the Milk Code54 to ensure that the
information that would reach pregnant women, mothers of infants,
and health professionals and workers in the health care system is
restricted to scientific and factual matters and shall not imply or
create a belief that bottlefeeding is equivalent or superior to
breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk
Code to control information regarding breastmilk vis-a-
vis breastmilk substitutes is not absolute as the power to control
does not encompass the power to absolutely prohibit the
advertising, marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that
unequivocally indicate that the control over information given to
the DOH is not absolute and that absolute prohibition is not
contemplated by the Code:
a) Section 2 which requires adequate information and
appropriate marketing and distribution of breastmilk
substitutes, to wit:
SECTION 2. Aim of the Code – The aim of the
Code is to contribute to the provision of safe and
adequate nutrition for infants by the protection and
promotion of breastfeeding and by ensuring the
proper use of breastmilk substitutes and
breastmilk supplements when these are
necessary, on the basis of adequate information
and through appropriate marketing and
distribution.
b) Section 3 which specifically states that the Code
applies to the marketing of and practices related to
breastmilk substitutes, including infant formula, and to
information concerning their use;
c) Section 5(a) which provides that the government shall
ensure that objective and consistent information is
provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual
informational and educational materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes and should include information on the health
hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates
and empowers the IAC to review and examine
advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may
provide information to health professionals but such
information should be restricted to factual and scientific
matters and shall not imply or create a belief that
 bottlefeeding is equivalent or superior to breastfeeding;
and
g) Section 10 which provides that containers or labels
should not contain information that would discourage
breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed
provisions of the RIRR regarding labeling and advertising.
Sections 13 on "total effect" and 26 of Rule VII of the RIRR
55 56
contain some labeling requirements, specifically: a) that there be
a statement that there is no substitute to breastmilk; and b) that
there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used
appropriately. Section 1657 of the RIRR prohibits all health and
nutrition claims for products within the scope of the Milk Code,
such as claims of increased emotional and intellectual abilities of
the infant and young child.
These requirements and limitations are consistent with the
provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors
to health professionals regarding products within the
scope of this Code shall be restricted to scientific and
factual matters, and such information shall not imply or
create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5.58 (Emphasis
supplied)
and Section 10(d)59 which bars the use on containers and labels
of the terms "humanized," "maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information
that would imply or create a belief that there is any milk product
equivalent to breastmilk or which is humanized or maternalized,
as such information would be inconsistent with the superiority of
breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to
information given to health workers regarding breastmilk
substitutes, not to containers and labels thereof. However, such
restrictive application of Section 8(b) will result in the absurd
situation in which milk companies and distributors are forbidden
to claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the
containers and labels of their products the exact opposite
message. That askewed interpretation of the Milk Code is
precisely what Section 5(a) thereof seeks to avoid by mandating
that all information regarding breastmilk vis-a-vis breastmilk
substitutes be consistent, at the same time giving the
government control over planning, provision, design, and
dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and
labels to state that the product offered is not a substitute for
breastmilk, is a reasonable means of enforcing Section 8(b) of the
Milk Code and deterring circumvention of the protection and
promotion of breastfeeding as embodied in Section 260 of the Milk
Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling
requirement. It implements Section 5(b) of the Milk Code which
reads:
SECTION 5. x x x
 xxxx
(b) Informational and educational materials, whether
written, audio, or visual, dealing with the feeding of infants
and intended to reach pregnant women and mothers of
infants, shall include clear information on all the following
points: x x x (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-
prepared. When such materials contain information about
the use of infant formula, they shall include the social and
financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or
improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.
(Emphasis supplied)
The label of a product contains information about said product
intended for the buyers thereof. The buyers of breastmilk
substitutes are mothers of infants, and Section 26 of the RIRR
merely adds a fair warning about the likelihood of pathogenic
microorganisms being present in infant formula and other related
products when these are prepared and used inappropriately.
Petitioner’s counsel has admitted during the hearing on June 19,
2007 that formula milk is prone to contaminations and there is as
yet no technology that allows production of powdered infant
formula that eliminates all forms of contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for
the label to contain the message regarding health hazards
including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk
Code.
The authority of DOH to control information regarding
breastmilk vis-a-vis breastmilk substitutes and supplements and
related products cannot be questioned. It is its intervention into
the area of advertising, promotion, and marketing that is being
assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing
materials, whether written, audio or visual, for products
within the scope of this Code shall be printed, published,
distributed, exhibited and broadcast unless such materials
are duly authorized and approved by an inter-agency
committee created herein pursuant to the applicable
standards provided for in this Code.
the Milk Code invested regulatory authority over advertising,
promotional and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-
agency committee composed of the following members is
hereby created:
Minister of Health -------------------
Minister of Trade and Industry -------------------
Minister of Justice -------------------
Minister of Social Services and Development -------------------
The members may designate their duly authorized
representative to every meeting of the Committee.
 The Committee shall have the following powers and
functions:
(1) To review and examine all advertising.
promotion or other marketing materials, whether
written, audio or visual, on products within the
scope of this Code;
(2) To approve or disapprove, delete
objectionable portions from and prohibit the
printing, publication, distribution, exhibition and
broadcast of, all advertising promotion or other
marketing materials, whether written, audio or
visual, on products within the scope of this Code;
(3) To prescribe the internal and operational
procedure for the exercise of its powers and
functions as well as the performance of its duties
and responsibilities; and
(4) To promulgate such rules and regulations
as are necessary or proper for the
implementation of Section 6(a) of this Code. x
x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions,
sponsorships, or marketing materials and activities for
breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed,
because they tend to convey or give subliminal messages
or impressions that undermine breastmilk and
breastfeeding or otherwise exaggerate breastmilk
substitutes and/or replacements, as well as related
products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing
materials and activities for breastmilk substitutes in line with the
RIRR’s declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles –
xxxx
(f) Advertising, promotions, or sponsorships of infant
formula, breastmilk substitutes and other related products
are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself
not only the regulatory authority given to the IAC but also
imposed absolute prohibition on advertising, promotion, and
marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the
requirement of the Milk Code in Section 6 thereof for prior
approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority
of IAC, and repeatedly insisted, during the oral arguments on
June 19, 2007, that the prohibition under Section 11 is not
actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned
by Petitioner is whether or not there is an absolute
prohibition on advertising making AO 2006-12
unconstitutional. We maintained that what AO 2006-12
provides is not an absolute prohibition because Section
11 while it states and it is entitled prohibition it states that
no advertising, promotion, sponsorship or marketing Regulations regarding the Advertising, Promotion and
materials and activities for breast milk substitutes Marketing of Breastmilk Substitutes?
intended for infants and young children up to 24 months
shall be allowed because this is the standard they tend to SOLICITOR GENERAL DEVANADERA:
convey or give subliminal messages or impression
undermine that breastmilk or breastfeeding x x x. Your Honor, please, it is provided that the Inter-Agency
Committee, Your Honor.
We have to read Section 11 together with the other
Sections because the other Section, Section 12, provides xxxx
for the inter agency committee that is empowered to
process and evaluate all the advertising and promotion
ASSOCIATE JUSTICE SANTIAGO:
materials.
x x x Don't you think that the Department of Health
xxxx
overstepped its rule making authority when it totally
banned advertising and promotion under Section 11
What AO 2006-12, what it does, it does not prohibit the prescribed the total effect rule as well as the content of
sale and manufacture, it simply regulates the materials under Section 13 and 15 of the rules and
advertisement and the promotions of breastfeeding milk regulations?
substitutes.
SOLICITOR GENERAL DEVANADERA:
xxxx
Your Honor, please, first we would like to stress that there
Now, the prohibition on advertising, Your Honor, must be is no total absolute ban. Second, the Inter-Agency
taken together with the provision on the Inter-Agency Committee is under the Department of Health, Your
Committee that processes and evaluates because there Honor.
may be some information dissemination that are straight
forward information dissemination. What the AO 2006 is
xxxx
trying to prevent is any material that will undermine the
practice of breastfeeding, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
xxxx
x x x Did I hear you correctly, Madam Solicitor, that there
is no absolute ban on advertising of breastmilk substitutes
ASSOCIATE JUSTICE SANTIAGO:
in the Revised Rules?
Madam Solicitor General, under the Milk Code, which
SOLICITOR GENERAL DEVANADERA:
body has authority or power to promulgate Rules and
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an
absolute ban on advertising of breastmilk substitutes
intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have
the Inter-Agency Committee that can evaluate some
advertising and promotional materials, subject to the
standards that we have stated earlier, which are- they
should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be
taken in relation with the other Sections, particularly 12
and 13 and 15, Your Honor, because it is recognized that
the Inter-Agency Committee has that power to evaluate
promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban
on advertisement regarding milk substitute regarding
infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a
prohibition, however, we take exceptions and standards
have been set. One of which is that, the Inter-Agency
Committee can allow if the advertising and promotions will
not undermine breastmilk and breastfeeding, Your
Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk
Code.
However, although it is the IAC which is authorized to promulgate
rules and regulations for the approval or rejection of advertising,
promotional, or other marketing materials under Section 12(a) of
the Milk Code, said provision must be related to Section 6 thereof
which in turn provides that the rules and regulations must be
"pursuant to the applicable standards provided for in this Code."
Said standards are set forth in Sections 5(b), 8(b), and 10 of the
Code, which, at the risk of being repetitious, and for easy
reference, are quoted hereunder:
SECTION 5. Information and Education –
xxxx
(b) Informational and educational materials, whether
written, audio, or visual, dealing with the feeding of infants
and intended to reach pregnant women and mothers of
infants, shall include clear information on all the following
points: (1) the benefits and superiority of breastfeeding;
(2) maternal nutrition, and the preparation for and
maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the
difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared.
When such materials contain information about the use of
infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate
foods of feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not
use any picture or text which may idealize the use of
breastmilk substitutes.
xxxx
SECTION 8. Health Workers. –
xxxx
(b) Information provided by manufacturers and distributors
to health professionals regarding products within the
scope of this Code shall be restricted to scientific and
factual matters and such information shall not imply or
create a belief that bottle feeding is equivalent or superior
to breastfeeding. It shall also include the information
specified in Section 5(b).
xxxx
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide
the necessary information about the appropriate use of
the products, and in such a way as not to discourage
breastfeeding.
(b) Each container shall have a clear, conspicuous and
easily readable and understandable message in Pilipino
or English printed on it, or on a label, which message can
not readily become separated from it, and which shall
include the following points:
(i) the words "Important Notice" or their
equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used
only on the advice of a health worker as to the
need for its use and the proper methods of use;
and
(iv) instructions for appropriate preparation, and a
warning against the health hazards of
inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the
principal implementing agency for the enforcement of the
provisions of the Code. In relation to such responsibility of the
DOH, Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education –
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for
use by families and those involved in the field of infant
nutrition. This responsibility shall cover the planning,
provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis
supplied)
Thus, the DOH has the significant responsibility to translate
into operational terms the standards set forth in Sections 5,
8, and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly
provided for Section 13 in the RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within
the scope of this Code must be objective and should not
equate or make the product appear to be as good or
equal to breastmilk or breastfeeding in the advertising
concept. It must not in any case undermine breastmilk or
 breastfeeding. The "total effect" should not directly or
indirectly suggest that buying their product would produce
better individuals, or resulting in greater love, intelligence,
ability, harmony or in any manner bring better health to
the baby or other such exaggerated and unsubstantiated
claim.
Such standards bind the IAC in formulating its rules and
regulations on advertising, promotion, and marketing. Through
that single provision, the DOH exercises control over the
information content of advertising, promotional and marketing
materials on breastmilk vis-a-vis breastmilk substitutes,
supplements and other related products. It also sets a viable
standard against which the IAC may screen such materials before
they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign
Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient
standards the following: "public interest," "justice and
equity," "public convenience and welfare," and "simplicity,
economy and welfare."65
In this case, correct information as to infant feeding and nutrition
is infused with public interest and welfare.
4. With regard to activities for dissemination of information to
health professionals, the Court also finds that there is no
inconsistency between the provisions of the Milk Code and the
RIRR. Section 7(b)66 of the Milk Code, in relation to Section
8(b)67 of the same Code, allows dissemination of information to
health professionals but such information is restricted to
scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not
prohibit the giving of information to health professionals on
scientific and factual matters. What it prohibits is the
involvement of the manufacturer and distributor of the products
covered by the Code in activities for the promotion, education and
production of Information, Education and Communication (IEC)
materials regarding breastfeeding that are intended for women
and children. Said provision cannot be construed to encompass
even the dissemination of information to health
professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code
permits milk manufacturers and distributors to extend assistance
in research and in the continuing education of health
professionals, while Sections 22 and 32 of the RIRR absolutely
forbid the same. Petitioner also assails Section 4(i)69 of the RIRR
prohibiting milk manufacturers' and distributors' participation in
any policymaking body in relation to the advancement of
breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their
representatives should not form part of any policymaking body or
entity in relation to the advancement of breastfeeding. The Court
finds nothing in said provisions which contravenes the Milk Code.
Note that under Section 12(b) of the Milk Code, it is the DOH
which shall be principally responsible for the implementation
and enforcement of the provisions of said Code. It is entirely up to
the DOH to decide which entities to call upon or allow to be part
of policymaking bodies on breastfeeding. Therefore, the RIRR's
prohibition on milk companies’ participation in any policymaking
body in relation to the advancement of breastfeeding is in accord
with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR
prohibits milk companies from giving reasearch assistance and
continuing education to health professionals. Section 2270 of the
RIRR does not pertain to research assistance to or the
continuing education of health professionals; rather, it deals
with breastfeeding promotion and education for women and
children. Nothing in Section 22 of the RIRR prohibits milk
companies from giving assistance for research or continuing
education to health professionals; hence, petitioner's argument
against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research
assistance. Said sections of the RIRR provide that research
assistance for health workers and researchers may be
allowed upon approval of an ethics committee, and with
certain disclosure requirements imposed on the milk
company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how
such research or educational assistance may be given by milk
companies or under what conditions health workers may accept
the assistance. Thus, Sections 9 and 10 of the RIRR imposing
limitations on the kind of research done or extent of assistance
given by milk companies are completely in accord with the Milk
Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk
companies from giving assistance, support, logistics or training to
health workers. This provision is within the prerogative given to
the DOH under Section 8(e)74 of the Milk Code, which provides
that manufacturers and distributors of breastmilk
substitutes may assist in researches, scholarships and the
continuing education, of health professionals in accordance with
the rules and regulations promulgated by the Ministry of Health,
now DOH.
6. As to the RIRR's prohibition on donations, said provisions are
also consistent with the Milk Code. Section 6(f) of the Milk Code
provides that donations may be made by manufacturers and
distributors of breastmilk substitutes upon the request or with
the approval of the DOH. The law does not proscribe the refusal
of donations. The Milk Code leaves it purely to the discretion of
the DOH whether to request or accept such donations. The DOH
then appropriately exercised its discretion through Section 5175 of
the RIRR which sets forth its policy not to request or approve
donations from manufacturers and distributors of breastmilk
substitutes.
It was within the discretion of the DOH when it provided in
Section 52 of the RIRR that any donation from milk companies
not covered by the Code should be coursed through the IAC
which shall determine whether such donation should be accepted
or refused. As reasoned out by respondents, the DOH is not
mandated by the Milk Code to accept donations. For that matter,
no person or entity can be forced to accept a donation. There is,
therefore, no real inconsistency between the RIRR and the law
because the Milk Code does not prohibit the DOH from refusing
donations.
7. With regard to Section 46 of the RIRR providing for
administrative sanctions that are not found in the Milk Code, the
Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air
Lines, Inc.76 is misplaced. The glaring difference in said case and
the present case before the Court is that, in the Civil Aeronautics
Board, the Civil Aeronautics Administration (CAA) was expressly
granted by the law (R.A. No. 776) the power to impose fines
and civil penalties, while the Civil Aeronautics Board (CAB) was
granted by the same law the power to review on appeal the order
or decision of the CAA and to determine whether to impose,
remit, mitigate, increase or compromise such fine and civil
penalties. Thus, the Court upheld the CAB's Resolution imposing
administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the
Philippines, Inc.,77 the Court upheld the Department of Energy
(DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular
provided for fines for the commission of prohibited acts. The
Court found that nothing in the circular contravened the law
because the DOE was expressly authorized by B.P. Blg. 33 and
R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised
Administrative Code grants the DOH the authority to fix or impose
administrative fines. Thus, without any express grant of power to
fix or impose such fines, the DOH cannot provide for those fines
in the RIRR. In this regard, the DOH again exceeded its authority
by providing for such fines or sanctions in Section 46 of the RIRR.
Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and
regulations. Section 12(b) (3) of the Milk Code authorizes the
DOH to "cause the prosecution of the violators of this Code and
other pertinent laws on products covered by this Code." Section
13 of the Milk Code provides for the penalties to be imposed on
violators of the provision of the Milk Code or the rules and
regulations issued pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or
the rules and regulations issued pursuant to this
Code shall, upon conviction, be punished by a penalty of
two (2) months to one (1) year imprisonment or a fine of
not less than One Thousand Pesos (P1,000.00) nor more
than Thirty Thousand Pesos (P30,000.00) or both. Should
the offense be committed by a juridical person, the
chairman of the Board of Directors, the president, general
manager, or the partners and/or the persons directly
responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any
government agency to any health worker, distributor,
manufacturer, or marketing firm or personnel for the
practice of their profession or occupation, or for the
pursuit of their business, may, upon recommendation of
the Ministry of Health, be suspended or revoked in the
event of repeated violations of this Code, or of the rules
and regulations issued pursuant to this Code. (Emphasis
supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals
existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances,
and rules and regulations or parts thereof inconsistent
with these revised rules and implementing regulations are
hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but
only orders, issuances and rules and regulations. Thus, said
provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-
legislative or rule-making power or the power to make rules and
regulations which results in delegated legislation that is within the
confines of the granting statute and the Constitution, and subject
to the doctrine of non-delegability and separability of
powers.78 Such express grant of rule-making power necessarily
includes the power to amend, revise, alter, or repeal the
same.79 This is to allow administrative agencies flexibility in
formulating and adjusting the details and manner by which they
are to implement the provisions of a law,80 in order to make it
more responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative
agencies that are inconsistent therewith are declared repealed or
modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the
authority of the DOH to promulgate and in contravention of the
Milk Code and, therefore, null and void. The rest of the provisions
of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
 x x x [T]he questioned RIRR sought to be implemented by
the Respondents is unnecessary and oppressive, and
is offensive to the due process clause of the
Constitution, insofar as the same is in restraint of
trade and because a provision therein is inadequate to
provide the public with a comprehensible basis to
determine whether or not they have committed a
violation.81 (Emphasis supplied)
Petitioner refers to Sections
4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions
that suppress the trade of milk and, thus, violate the due process
clause of the Constitution.
The framers of the constitution were well aware that trade must
be subjected to some form of regulation for the public good.
Public interest must be upheld over business interests.90 In Pest
Management Association of the Philippines v. Fertilizer and
Pesticide Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine
Coconut Desiccators v. Philippine Coconut
Authority, despite the fact that "our present
Constitution enshrines free enterprise as a policy, it
nonetheless reserves to the government the power to
intervene whenever necessary to promote the general
welfare." There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to
our environment. Thus, in the aforecited case, the Court
declared that "free enterprise does not call for removal
of ‘protective regulations’." x x x It must be clearly
explained and proven by competent evidence just
exactly how such protective regulation would result
in the restraint of trade. [Emphasis and underscoring
supplied]
In this case, petitioner failed to show that the proscription of milk
manufacturers’ participation in any policymaking body (Section
4(i)), classes and seminars for women and children (Section 22);
the giving of assistance, support and logistics or training (Section
32); and the giving of donations (Section 52) would unreasonably
hamper the trade of breastmilk substitutes. Petitioner has not
established that the proscribed activities are indispensable to the
trade of breastmilk substitutes. Petitioner failed to demonstrate
that the aforementioned provisions of the RIRR are unreasonable
and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of
the RIRR is unreasonable and oppressive. Said section provides
for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the
owner, manufacturer, distributor of infant formula, follow-
up milk, milk formula, milk supplement, breastmilk
substitute or replacement, or by any other description of
such nature, including their representatives who promote
or otherwise advance their commercial interests in
marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other
entity in the public or private sector engaged in the
business (whether directly or indirectly) of marketing at
the wholesale or retail level a product within the scope of
this Code. A "primary distributor" is a manufacturer's
sales agent, representative, national distributor or broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in
the public or private sector engaged in the business or
function (whether directly or indirectly or through an agent
or and entity controlled by or under contract with it) of
manufacturing a products within the scope of this Code.
Notably, the definition in the RIRR merely merged together under
the term "milk company" the entities defined separately under the
Milk Code as "distributor" and "manufacturer." The RIRR also
enumerated in Section 5(w) the products manufactured or
distributed by an entity that would qualify it as a "milk company,"
whereas in the Milk Code, what is used is the phrase "products
within the scope of this Code." Those are the only differences
between the definitions given in the Milk Code and the definition
as re-stated in the RIRR.
The Temporary Restraining Order issued on August 15, 2006
is LIFTED insofar as the rest of the provisions of Administrative
Order No. 2006-0012 is concerned.
SO ORDERED.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Corona, Carpio-Morales, Azcuna, Tinga,
Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

Since all the regulatory provisions under the Milk Code apply
equally to both manufacturers and distributors, the Court sees no
harm in the RIRR providing for just one term to encompass both
entities. The definition of "milk company" in the RIRR and the
definitions of "distributor" and "manufacturer" provided for under
the Milk Code are practically the same.

The Court is not convinced that the definition of "milk company"

provided in the RIRR would bring about any change in the
treatment or regulation of "distributors" and "manufacturers" of
breastmilk substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the
RIRR are in consonance with the objective, purpose and intent of
the Milk Code, constituting reasonable regulation of an industry
which affects public health and welfare and, as such, the rest of
the RIRR do not constitute illegal restraint of trade nor are they
violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections

4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May
12, 2006 are declared NULL and VOID for being ultra vires. The
Department of Health and respondents are PROHIBITED from
implementing said provisions.
Pleasant grove PDF: https://www.law.cornell.edu/supct/pdf/07-
665P.ZO
G.R. No. 169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG
PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
Constantino, Jr., Froyel Yaneza, and Fahima Tajar,
Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary,
Manila City Mayor LITO ATIENZA, Chief of the Philippine
National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief
Maj. Gen. VIDAL QUEROL, and Western Police District Chief
Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro
Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie
Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida
Ramos, Mary Grace Gonzales, Michael Torres, Rendo
Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista,
Joseph de Jesus, Margarita Escober, Djoannalyn Janier,
Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita
Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive
Secretary and in his personal capacity, ANGELO REYES, in
his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as
the Chief, Philippine National Police, VIDAL QUEROL, in his
official capacity as the Chief, National Capital Regional
Police Office (NCRPO), PEDRO BULAONG, in his official
capacity as the Chief, Manila Police District (MPD) AND ALL
OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE
INDIVIDUALS ACTING UNDER THEIR CONTROL,
SUPERVISION AND INSTRUCTIONS, Respondents.
x---------------------------------x
G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson
ELMER C. LABOG and Secretary General JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President, JOSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG,
FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP
DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE
MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege
that they are citizens and taxpayers of the Philippines and that
their rights as organizations and individuals were violated when
the rally they participated in on October 6, 2005 was violently
dispersed by policemen implementing Batas Pambansa (B.P.)
No. 880.
The second group consists of 26 individual petitioners, Jess del
Prado, et al., in G.R. No. 169848,2 who allege that they were
injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently
dispersed by the police. They further assert that on October 5,
2005, a group they participated in marched to Malacañang to
protest issuances of the Palace which, they claim, put the country
under an "undeclared" martial rule, and the protest was likewise
dispersed violently and many among them were arrested and
suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in
G.R. No. 169881,3 allege that they conduct peaceful mass actions
and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly,
are affected by Batas Pambansa No. 880 and the policy of
"Calibrated Preemptive Response" (CPR) being followed to
implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-
sponsored was to be conducted at the Mendiola bridge but police
blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members.
They further allege that on October 6, 2005, a multi-sectoral rally
which KMU also co-sponsored was scheduled to proceed along
España Avenue in front of the University of Santo Tomas and
going towards Mendiola bridge. Police officers blocked them
along Morayta Street and prevented them from proceeding
further. They were then forcibly dispersed, causing injuries on
one of them.4 Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in
toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well
as the policy of CPR. They seek to stop violent dispersals of
rallies under the "no permit, no rally" policy and the CPR policy
recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right
Peaceably To Assemble And Petition The Government [And] For
Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public
Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the
people peaceably to assemble and petition the government for
redress of grievances is essential and vital to the strength and
stability of the State. To this end, the State shall ensure the free
exercise of such right without prejudice to the rights of others to
life, liberty and equal protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration,
march, parade, procession or any other form of mass or
concerted action held in a public place for the purpose of
presenting a lawful cause; or expressing an opinion to the
general public on any particular issue; or protesting or
influencing any state of affairs whether political, economic
or social; or petitioning the government for redress of
grievances.
The processions, rallies, parades, demonstrations, public
meetings and assemblages for religious purposes shall be
governed by local ordinances; Provided, however, That
the declaration of policy as provided in Section 2 of this
Act shall be faithfully observed.
The definition herein contained shall not include picketing
and other concerted action in strike areas by workers and
employees resulting from a labor dispute as defined by
the Labor Code, its implementing rules and regulations,
and by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard,
avenue, road, street, bridge or other thoroughfare, park,
 plaza, square, and/or any open space of public ownership
where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of
restraint that the military, police and other peace keeping
authorities shall observe during a public assembly or in
the dispersal of the same.
(d) "Modification of a permit" shall include the change of
the place and time of the public assembly, rerouting of the
parade or street march, the volume of loud-speakers or
sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written
permit shall be required for any person or persons to organize
and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in
a freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which
shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election
campaign period as provided for by law are not covered by this
Act.
Sec. 5. Application requirements. – All applications for a permit
shall comply with the following guidelines:
(a) The applications shall be in writing and shall include
the names of the leaders or organizers; the purpose of
such public assembly; the date, time and duration thereof,
and place or streets to be used for the intended activity;
and the probable number of persons participating, the
transport and the public address systems to be used.
(b) The application shall incorporate the duty and
responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the
mayor of the city or municipality in whose jurisdiction the
intended activity is to be held, at least five (5) working
days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal
mayor shall cause the same to immediately be posted at
a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in
his behalf to issue or grant a permit unless there is clear
and convincing evidence that the public assembly will
create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act
on the application within two (2) working days from the
date the application was filed, failing which, the permit
shall be deemed granted. Should for any reason the
mayor or any official acting in his behalf refuse to accept
the application for a permit, said application shall be
posted by the applicant on the premises of the office of
the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and
grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served
on the applica[nt] within twenty-four hours.
 (e) If the mayor or any official acting in his behalf denies
the application or modifies the terms thereof in his permit,
the applicant may contest the decision in an appropriate
court of law.
(f) In case suit is brought before the Metropolitan Trial
Court, the Municipal Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the Intermediate
Appellate court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall
be required. A decision granting such permit or modifying
it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be
decided within twenty-four (24) hours from date of filing.
Cases filed hereunder shall be immediately endorsed to
the executive judge for disposition or, in his absence, to
the next in rank.
(h) In all cases, any decision may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals
are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public
assembly involve the use, for an appreciable length of time, of
any public highway, boulevard, avenue, road or street, the mayor
or any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to
the participants or reroute the vehicular traffic to another direction
so that there will be no serious or undue interference with the free
flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and
responsibility of the leaders and organizers of a public assembly
to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in
accordance with the terms of the permit. These shall include but
not be limited to the following:
(a) To inform the participants of their responsibility under
the permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to
prevent non-demonstrators from disrupting the lawful
activities of the public assembly;
(c) To confer with local government officials concerned
and law enforcers to the end that the public assembly
may be held peacefully;
(d) To see to it that the public assembly undertaken shall
not go beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not
molest any person or do any act unduly interfering with
the rights of other persons not participating in the public
assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law
enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a
law enforcement contingent under the command of a responsible
police officer may be detailed and stationed in a place at least
one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be
imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties
always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble
and the freedom of expression is primordial. Towards this end,
law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal
with the demonstrators shall be in complete uniform with
their nameplates and units to which they belong displayed
prominently on the front and dorsal parts of their uniform
and must observe the policy of "maximum tolerance" as
herein defined;
(b) The members of the law enforcement contingent shall
not carry any kind of firearms but may be equipped with
baton or riot sticks, shields, crash helmets with visor, gas
masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any
similar anti-riot device shall not be used unless the public
assembly is attended by actual violence or serious threats
of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public
assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking
officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask
the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other
harmful objects from the participants are thrown at the
police or at the non-participants, or at any property
causing damage to such property, the ranking officer of
the law enforcement contingent shall audibly warn the
participants that if the disturbance persists, the public
assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in
the preceding subparagraph should not stop or abate, the
ranking officer of the law enforcement contingent shall
audibly issue a warning to the participants of the public
assembly, and after allowing a reasonable period of time
to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall
also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the
peace during the public assembly shall not constitute a
ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the
public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute
violations of the Act:
(a) The holding of any public assembly as defined in this
Act by any leader or organizer without having first secured
that written permit where a permit is required from the
office concerned, or the use of such permit for such
purposes in any place other than those set out in said
permit: Provided, however, That no person can be
punished or held criminally liable for participating in or
attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a
permit in violation of the provisions of this Act by the
mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or
acknowledge receipt of the application for a permit by the
mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying
the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any
law enforcement agency or any person to disperse the
public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one
hundred (100) meters from the area of activity of the
public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or
device such as firearm, pillbox, bomb, and the
like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the
streets or thoroughfares;
4. the carrying of firearms by members of the law
enforcement unit;
5. the interfering with or intentionally disturbing the
holding of a public assembly by the use of a motor
vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of
any of the prohibited acts defined in the immediately preceding
section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by
imprisonment of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and
item 4, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished
by imprisonment of six months and one day to six years
without prejudice to prosecution under Presidential
Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph
(g) shall be punished by imprisonment of one day to thirty
days.
Sec. 15. Freedom parks. – Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall
in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations
and meetings may be held at any time without the need of any
prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be
declared invalid or unconstitutional, the validity or constitutionality
of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of
instructions, resolutions, orders, ordinances or parts thereof
which are inconsistent with the provisions of this Act are hereby
repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by
Malacañang dated September 21, 2005, shown in Annex "A" to
the Petition in G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO
ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-
government groups to inflame the political situation, sow disorder
and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to
strictly enforce a "no permit, no rally" policy, disperse groups that
run afoul of this standard and arrest all persons violating the laws
of the land as well as ordinances on the proper conduct of mass
actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu
of maximum tolerance. The authorities will not stand aside while
those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public
order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-
abiding citizens have the right to be protected by a vigilant and
proactive government.
We appeal to the detractors of the government to engage in
lawful and peaceful conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on
the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880
is clearly a violation of the Constitution and the International
Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can
stage a public assembly regardless of the presence or absence of
a clear and present danger. It also curtails the choice of venue
and is thus repugnant to the freedom of expression clause as the
time and place of a public assembly form part of the message for
which the expression is sought. Furthermore, it is not content-
neutral as it does not apply to mass actions in support of the
government. The words "lawful cause," "opinion," "protesting or
influencing" suggest the exposition of some cause not espoused
by the government. Also, the phrase "maximum tolerance" shows
that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation,
it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No.
880 is unconstitutional as it is a curtailment of the right to
peacefully assemble and petition for redress of grievances
because it puts a condition for the valid exercise of that right. It
also characterizes public assemblies without a permit as illegal
and penalizes them and allows their dispersal. Thus, its
provisions are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without
providing clear standards. The two standards stated in the laws
(clear and present danger and imminent and grave danger) are
inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act
that alters the standard of maximum tolerance set forth in B.P.
No. 880, aside from being void for being vague and for lack of
publication.
Finally, petitioners KMU, et al., argue that the Constitution sets
no limits on the right to assembly and therefore B.P. No. 880
cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits
provided are unreasonable: First, allowing the Mayor to deny the
permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement
to apply for a permit is too long as certain events require instant
public assembly, otherwise interest on the issue would possibly
wane.
As to the CPR policy, they argue that it is preemptive, that the
government takes action even before the rallyists can perform
their act, and that no law, ordinance or executive order supports
the policy. Furthermore, it contravenes the maximum tolerance
policy of B.P. No. 880 and violates the Constitution as it causes a
chilling effect on the exercise by the people of the right to
peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as
Executive Secretary, Manila City Mayor Lito Atienza, Chief, of
the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief,
PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD)
Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as
Executive Secretary and in his personal capacity; Angelo Reyes,
as Secretary of the Interior and Local Governments; Arturo
Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro
Bulaong, as Chief, MPD, and all other public officers and private
individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive
Secretary, PNP Director General Arturo Lomibao, the
Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro
Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not
presented evidence that they had been "injured, arrested
or detained because of the CPR," and that "those
arrested stand to be charged with violating Batas
Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face.
Petitioners cannot honestly claim that the time, place and
manner regulation embodied in B.P. No. 880 violates the
three-pronged test for such a measure, to wit: (a) B.P. No.
880 is content-neutral, i.e., it has no reference to content
of regulated speech; (b) B.P. No. 880 is narrowly tailored
to serve a significant governmental interest, i.e., the
interest cannot be equally well served by a means that is
less intrusive of free speech interests; and (c) B.P. No.
880 leaves open alternative channels for communication
of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of
the law. Section 5 requires the statement of the public
assembly’s time, place and manner of conduct. It entails
traffic re-routing to prevent grave public inconvenience
and serious or undue interference in the free flow of
commerce and trade. Furthermore, nothing in B.P. No.
880 authorizes the denial of a permit on the basis of a
rally’s program content or the statements of the speakers
therein, except under the constitutional precept of the
"clear and present danger test." The status of B.P. No.
880 as a content-neutral regulation has been recognized
in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-
neutral regulation of the time, place and manner of
holding public assemblies and the law passes the test for
such regulation, namely, these regulations need only a
substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a
local chief executive has the authority to exercise police
power to meet "the demands of the common good in
terms of traffic decongestion and public convenience."
Furthermore, the discretion given to the mayor is narrowly
circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d),
(e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent.
"Clear and convincing evidence that the public assembly
will create a clear and present danger to public order,
public safety, public convenience, public morals or public
health" and "imminent and grave danger of a substantive
evil" both express the meaning of the "clear and present
danger test."10
7. CPR is simply the responsible and judicious use of
means allowed by existing laws and ordinances to protect
public interest and restore public order. Thus, it is not
accurate to call it a new rule but rather it is a more pro-
active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the
streets. It does not replace the rule of maximum tolerance
in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his
Comment that the petition in G.R. No. 169838 should be
dismissed on the ground that Republic Act No. 7160 gives the
Mayor power to deny a permit independently of B.P. No. 880; that
his denials of permits were under the "clear and present danger"
rule as there was a clamor to stop rallies that disrupt the economy
and to protect the lives of other people; that J. B. L. Reyes v.
Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have
affirmed the constitutionality of requiring a permit; that the permit
is for the use of a public place and not for the exercise of rights;
and that B.P. No. 880 is not a content-based regulation because
it covers all rallies.
The petitions were ordered consolidated on February 14, 2006.
After the submission of all the Comments, the Court set the cases
for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:
1. On the constitutionality of Batas Pambansa No. 880,
specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof,
and Republic Act No. 7160:
(a) Are these content-neutral or content-based
regulations?
(b) Are they void on grounds of overbreadth or
vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to
Mayors?
 (e) Do they violate international human rights
treaties and the Universal Declaration of Human
Rights?
2. On the constitutionality and legality of the policy of
Calibrated Preemptive Response (CPR):
(a) Is the policy void on its face or due to
vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the
rallies of September 26 and October 4, 5 and 6,
2005?
During the course of the oral arguments, the following
developments took place and were approved and/or noted by the
Court:
1. Petitioners, in the interest of a speedy resolution of the
petitions, withdrew the portions of their petitions raising
factual issues, particularly those raising the issue of
whether B.P. No. 880 and/or CPR is void as applied to the
rallies of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of
the Chief Justice that CPR should no longer be used as a
legal term inasmuch as, according to respondents, it was
merely a "catchword" intended to clarify what was thought
to be a misunderstanding of the maximum tolerance
policy set forth in B.P. No. 880 and that, as stated in the
affidavit executed by Executive Secretary Eduardo Ermita
and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy
embodied in that law.
The Court will now proceed to address the principal issues, taking
into account the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right
as citizens to engage in peaceful assembly and exercise the right
of petition, as guaranteed by the Constitution, is directly affected
by B.P. No. 880 which requires a permit for all who would publicly
assemble in the nation’s streets and parks. They have, in fact,
purposely engaged in public assemblies without the required
permits to press their claim that no such permit can be validly
required without violating the Constitutional guarantee.
Respondents, on the other hand, have challenged such action as
contrary to law and dispersed the public assemblies held without
the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of
grievances.
The first point to mark is that the right to peaceably assemble and
petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys
primacy in the realm of constitutional protection. For these rights
constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected.
As stated in Jacinto v. CA,15 the Court, as early as the onset of
this century, in U.S. v. Apurado,16 already upheld the right to
assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful
assembly to petition the government for a redress of grievances
and, for that matter, to organize or form associations for purposes
not contrary to law, as well as to engage in peaceful concerted
activities. These rights are guaranteed by no less than the
Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII.
Jurisprudence abounds with hallowed pronouncements defending
and promoting the people’s exercise of these rights. As early as
the onset of this century, this Court in U.S. vs. Apurado, already
upheld the right to assembly and petition and even went as far as
to acknowledge:
"It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances
whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and the greater, the
grievance and the more intense the feeling, the less perfect, as a
rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to
seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the
authorities, then the right to assemble and to petition for redress
of grievances would become a delusion and a snare and the
attempt to exercise it on the most righteous occasion and in the
most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the
purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of disorderly
conduct occur on such occasions, the guilty individuals should be
sought out and punished therefor, but the utmost discretion must
be exercised in drawing the line
between disorderly and seditious conduct and between an
essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the
primacy of freedom of speech and to assembly and petition over
comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while
sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and
petition the government for redress of grievances, are
fundamental personal rights of the people recognized and
guaranteed by the constitutions of democratic countries. But it is
a settled principle growing out of the nature of well-ordered civil
societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, nor injurious to the rights
of the community or society. The power to regulate the exercise
of such and other constitutional rights is termed the sovereign
"police power," which is the power to prescribe regulations, to
promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police
power is exercised by the government through its legislative
branch by the enactment of laws regulating those and other
constitutional and civil rights, and it may be delegated to political
subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city
councils to enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits,
as follows:
1. It is thus clear that the Court is called upon to protect
the exercise of the cognate rights to free speech and
peaceful assembly, arising from the denial of a permit.
The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble and petition the
Government for redress of grievances." Free speech, like
free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without
censorship or punishment. There is to be then no
previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings
unless there be a "clear and present danger of a
substantive evil that [the State] has a right to prevent."
Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters
of public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom
of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even
prior to the 1935 Constitution, Justice Malcolm had
occasion to stress that it is a necessary consequence of
our republican institutions and complements the right of
free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American
Supreme Court in Thomas v. Collins, it was not by
accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of
grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary
is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger,
of a character both grave and imminent, of a serious evil
to public safety, public morals, public health, or any other
legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of
expression and peaceable assembly better expressed
than in this excerpt from an opinion of Justice Frankfurter:
"It must never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment. Back of the
guaranty of free speech lay faith in the power of an appeal
to reason by all the peaceful means for gaining access to
the mind. It was in order to avert force and explosions due
to restrictions upon rational modes of communication that
the guaranty of free speech was given a generous scope.
But utterance in a context of violence can lose its
significance as an appeal to reason and become part of
an instrument of force. Such utterance was not meant to
be sheltered by the Constitution." What was rightfully
stressed is the abandonment of reason, the utterance,
whether verbal or printed, being in a context of violence. It
must always be remembered that this right likewise
provides for a safety valve, allowing parties the
opportunity to give vent to their views, even if contrary to
the prevailing climate of opinion. For if the peaceful
means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is
this the sole reason for the expression of dissent. It
means more than just the right to be heard of the person
who feels aggrieved or who is dissatisfied with things as
they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to
ensure a true ferment of ideas. There are, of course, well-
defined limits. What is guaranteed is peaceable assembly.
One may not advocate disorder in the name of protest,
much less preach rebellion under the cloak of dissent.
The Constitution frowns on disorder or tumult attending a
rally or assembly. Resort to force is ruled out and
outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early
Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more
or less disorder will mark the public assembly of the
people to protest against grievances whether real or
imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less
perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." It bears
repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to one’s destructive
urges is to call for condemnation. It is to make a mockery
of the high estate occupied by intellectual liberty in our
scheme of values.
There can be no legal objection, absent the existence of a
clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would
start. The Philippines is committed to the view expressed
in the plurality opinion, of 1939 vintage, of Justice Roberts
in Hague v. CIO: "Whenever the title of streets and parks
may rest, they have immemorially been held in trust for
the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and
liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication of
views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and
convenience, and in consonance with peace and good
order; but must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval
in Primicias v. Fugoso. Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and
thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza
"being a promenade for public use," which certainly is not
the only purpose that it could serve. To repeat, there can
be no valid reason why a permit should not be granted for
the proposed march and rally starting from a public park
that is the Luneta.
4. Neither can there be any valid objection to the use of
the streets to the gates of the US embassy, hardly two
blocks away at the Roxas Boulevard. Primicias v. Fugoso
has resolved any lurking doubt on the matter. In holding
that the then Mayor Fugoso of the City of Manila should
grant a permit for a public meeting at Plaza Miranda in
Quiapo, this Court categorically declared: "Our conclusion
finds support in the decision in the case of Willis Cox v.
State of New Hampshire, 312 U.S., 569. In that case, the
statute of New Hampshire P.L. chap. 145, section 2,
providing that no parade or procession upon any ground
abutting thereon, shall be permitted unless a special
license therefor shall first be obtained from the selectmen
of the town or from licensing committee,’ was construed
by the Supreme Court of New Hampshire as not
conferring upon the licensing board unfettered discretion
to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941)
penned by Chief Justice Hughes affirming the judgment of
the State Supreme Court, held that ‘a statute requiring
persons using the public streets for a parade or
procession to procure a special license therefor from the
local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press,
where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of
licenses, to a consideration of the time, place, and
manner of the parade or procession, with a view to
conserving the public convenience and of affording an
opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored:
"Civil liberties, as guaranteed by the Constitution, imply
the existence of an organized society maintaining public
order without which liberty itself would be lost in the
excesses of unrestricted abuses. The authority of a
municipality to impose regulations in order to assure the
safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with
civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the
most familiar illustration of this recognition of social need.
Where a restriction of the use of highways in that relation
is designed to promote the public convenience in the
interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances
would be entitled to protection."
xxx
6. x x x The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: "The
question, if the rights of free speech and peaceable
assembly are to be preserved, is not as to the auspices
under which the meeting is held but as to its purpose; not
as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of
speech which the Constitution protects." There could be
danger to public peace and safety if such a gathering
were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties
should be held accountable. It is true that the licensing
official, here respondent Mayor, is not devoid of discretion
in determining whether or not a permit would be granted.
It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may
possibly occur but of what may probably occur, given all
the relevant circumstances, still the assumption –
especially so where the assembly is scheduled for a
specific public place – is that the permit must be for the
assembly being held there. The exercise of such a right,
in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."
xxx
8. By way of a summary. The applicants for a permit to
hold an assembly should inform the licensing authority of
the date, the public place where and the time when it will
take place. If it were a private place, only the consent of
the owner or the one entitled to its legal possession is
required. Such application should be filed well ahead in
time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the
permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification
that the clear and present danger test be the standard for
the decision reached. If he is of the view that there is such
an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his
decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper judicial
authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in
our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary, -- even more so
than on the other departments – rests the grave and
delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes "as the
sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do
precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision
in Reyes.
The provisions of B.P. No. 880 practically codify the ruling
in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366,
November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The
applicants for a permit to hold
an assembly should inform
the licensing authority of the
date, the public
place where and the time
when it will take place. If it
were a private place, only the
consent of the owner or the
one entitled to its legal
possession is required. Such
application should be filed
well ahead in time to enable
the public official concerned
to appraise whether there
may be valid objections to
the grant of the permit or to
its grant but at another public
place. It is an indispensable
condition to such refusal or
modification that the clear
and present danger test be
the standard for the decision
reached. If he is of the view
that there is such an
imminent and grave danger
of a substantive evil, the
applicants must be heard on
B.P. No. 880
Sec. 4. Permit when required
and when not required.-- A
written permit shall be
required for any person or
persons to organize and hold
a public assembly in a public
place. However, no permit
shall be required if the public
assembly shall be done or
made in a freedom park duly
established by law or
ordinance or in private
property, in which case only
the consent of the owner or
the one entitled to its legal
possession is required, or in
the campus of a government-
owned and operated
educational institution which
shall be subject to the rules
and regulations of said
educational institution.
Political meetings or rallies
held during any election
campaign period as provided
for by law are not covered by
this Act.
Sec. 5. Application
requirements.-- All
applications for a permit shall
comply with the following
the matter. Thereafter, his
decision, whether favorable
or adverse, must be
transmitted to them at the
earliest opportunity. Thus if
so minded, they can have
recourse to the proper
judicial authority.
guidelines:
(a) The applications
shall be in writing and
shall include the
names of the leaders
or organizers; the
purpose of such
public assembly; the
date, time and
duration thereof, and
place or streets to be
used for the intended
activity; and the
probable number of
persons participating,
the transport and the
public address
systems to be used.
(b) The application
shall incorporate the
duty and
responsibility of
applicant under
Section 8 hereof.
(c) The application
shall be filed with the
office of the mayor of
the city or
municipality in whose
jurisdiction the
intended activity is to
be held, at least five
 (5) working days public health.
before the scheduled
public assembly. (b) The mayor or any
official acting in his
(d) Upon receipt of behalf shall act on
the application, which the application within
must be duly two (2) working days
acknowledged in from the date the
writing, the office of application was filed,
the city or municipal failing which, the
mayor shall cause the permit shall be
same to immediately deemed granted.
be posted at a Should for any
conspicuous place in reason the mayor or
the city or municipal any official acting in
building. his behalf refuse to
accept the application
Sec. 6. Action to be taken on for a permit, said
the application. – application shall be
posted by the
(a) It shall be the duty applicant on the
of the mayor or any premises of the office
official acting in his of the mayor and
behalf to issue or shall be deemed to
grant a permit unless have been filed.
there is clear and
convincing evidence (c) If the mayor is of
that the public the view that there is
assembly will create imminent and grave
a clear and present danger of a
danger to public substantive evil
order, public safety, warranting the denial
public convenience, or modification of the
public morals or permit, he shall
immediately inform
the applicant who hours after receipt of
must be heard on the the same. No appeal
matter. bond and record on
appeal shall be
(d) The action on the required. A decision
permit shall be in granting such permit
writing and served on or modifying it in
the applica[nt] within terms satisfactory to
twenty-four hours. the applicant shall be
immediately
(e) If the mayor or executory.
any official acting in
his behalf denies the (g) All cases filed in
application or court under this
modifies the terms section shall be
thereof in his permit, decided within
the applicant may twenty-four (24)
contest the decision hours from date of
in an appropriate filing. Cases filed
court of law. hereunder shall be
immediately
(f) In case suit is endorsed to the
brought before the executive judge for
Metropolitan Trial disposition or, in his
Court, the Municipal absence, to the next
Trial Court, the in rank.
Municipal Circuit Trial
Court, the Regional (h) In all cases, any
Trial Court, or the decision may be
Intermediate appealed to the
Appellate Court, its Supreme Court.
decisions may be
appealed to the (i) Telegraphic
appropriate court appeals to be
within forty-eight (48) followed by formal

appeals are hereby
allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban
of public assemblies but a restriction that simply regulates the
time, place and manner of the assemblies. This was adverted to
in Osmeña v. Comelec,20 where the Court referred to it as a
"content-neutral" regulation of the time, place, and manner of
holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows
that it refers to all kinds of public assemblies22 that would use
public places. The reference to "lawful cause" does not make it
content-based because assemblies really have to be for lawful
causes, otherwise they would not be "peaceable" and entitled to
protection. Neither are the words "opinion," "protesting" and
"influencing" in the definition of public assembly content based,
since they can refer to any subject. The words "petitioning the
government for redress of grievances" come from the wording of
the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyists and is
independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of
clear and present danger to public order, public safety, public
convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on
Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and
association.
xxx
Article 29
1. Everyone has duties to the community in which alone
the free and full development of his personality is
possible.
2. In the exercise of his rights and freedoms, everyone
shall be subject only to such limitations as are determined
by law solely for the purpose of securing due recognition
and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order
and the general welfare in a democratic society.
3. These rights and freedoms may in no case be
exercised contrary to the purposes and principles of the
United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression;
this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of
this article carries with it special duties and
 responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided
by law and are necessary:
(a) For respect of the rights or reputations of
others;
(b) For the protection of national security or of
public order (ordre public), or of public health or
morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere
vague in its provisions. "Public" does not have to be defined. Its
ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of
people distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law
refers to "rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place." So
it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right
to peaceful assembly and petition only to the extent needed to
avoid a clear and present danger of the substantive evils
Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the
speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a
precise and sufficient standard – the clear and present danger
test stated in Sec. 6(a). The reference to "imminent and grave
danger of a substantive evil" in Sec. 6(c) substantially means the
same thing and is not an inconsistent standard. As to whether
respondent Mayor has the same power independently under
Republic Act No. 716024 is thus not necessary to resolve in these
proceedings, and was not pursued by the parties in their
arguments.
Finally, for those who cannot wait, Section 15 of the law provides
for an alternative forum through the creation of freedom parks
where no prior permit is needed for peaceful assembly and
petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall
in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations
and meetings may be held at any time without the need of any
prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this
provision.
The Solicitor General stated during the oral arguments that, to his
knowledge, only Cebu City has declared a freedom park – Fuente
Osmeña.
That of Manila, the Sunken Gardens, has since been converted
into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate
that every city and municipality set aside a freedom park within
six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken
for granted amidst the swell of freedom that rose from the
peaceful revolution of 1986.
Considering that the existence of such freedom parks is an
essential part of the law’s system of regulation of the people’s
exercise of their right to peacefully assemble and petition, the
Court is constrained to rule that after thirty (30) days from the
finality of this Decision, no prior permit may be required for the
exercise of such right in any public park or plaza of a city or
municipality until that city or municipality shall have complied with
Section 15 of the law. For without such alternative forum, to deny
the permit would in effect be to deny the right. Advance notices
should, however, be given to the authorities to ensure proper
coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier,
the Solicitor General has conceded that the use of the term
should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No.
880. This is stated in the Affidavit of respondent Executive
Secretary Eduardo Ermita, submitted by the Solicitor General,
thus:
14. The truth of the matter is the policy of "calibrated preemptive
response" is in consonance with the legal definition of "maximum
tolerance" under Section 3 (c) of B.P. Blg. 880, which is the
"highest degree of restraint that the military, police and other
peacekeeping authorities shall observe during a public assembly
or in the dispersal of the same." Unfortunately, however, the
phrase "maximum tolerance" has acquired a different meaning
over the years. Many have taken it to mean inaction on the part of
law enforcers even in the face of mayhem and serious threats to
public order. More so, other felt that they need not bother secure
a permit when holding rallies thinking this would be "tolerated."
Clearly, the popular connotation of "maximum tolerance" has
departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance
is provided under the same law which requires all pubic
assemblies to have a permit, which allows the dispersal of rallies
without a permit, and which recognizes certain instances when
water cannons may be used. This could only mean that
"maximum tolerance" is not in conflict with a "no permit, no rally
policy" or with the dispersal and use of water cannons under
certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a
mass action is. Our law enforcers should calibrate their response
based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is
being enforced in lieu of maximum tolerance I clearly was not
referring to its legal definition but to the distorted and much
abused definition that it has now acquired. I only wanted to
disabuse the minds of the public from the notion that law
enforcers would shirk their responsibility of keeping the peace
even when confronted with dangerously threatening behavior. I
wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus
I said, "we have instructed the PNP as well as the local
government units to strictly enforce a no permit, no rally policy . . .
arrest all persons violating the laws of the land . . . unlawful mass
actions will be dispersed." None of these is at loggerheads with
the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd
for complainants to even claim that I ordered my co-respondents
to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance
mandated by B.P. No. 880, CPR serves no valid purpose if it
means the same thing as maximum tolerance and is illegal if it
means something else. Accordingly, what is to be followed is and
should be that mandated by the law itself, namely, maximum
tolerance, which specifically means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
 xxx
(c) "Maximum tolerance" means the highest degree of restraint
that the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. – Law
enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a
law enforcement contingent under the command of a responsible
police officer may be detailed and stationed in a place at least
one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be
imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties
always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble
and the freedom of expression is primordial. Towards this end,
1avvphil.net
law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal
with the demonstrators shall be in complete uniform with
their nameplates and units to which they belong displayed
prominently on the front and dorsal parts of their uniform
and must observe the policy of "maximum tolerance" as
herein defined;
(b) The members of the law enforcement contingent shall
not carry any kind of firearms but may be equipped with
baton or riot sticks, shields, crash helmets with visor, gas
masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any
similar anti-riot device shall not be used unless the public
assembly is attended by actual violence or serious threats
of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public
assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking
officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask
the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other
harmful objects from the participants are thrown at the
police or at the non-participants, or at any property
causing damage to such property, the ranking officer of
the law enforcement contingent shall audibly warn the
participants that if the disturbance persists, the public
assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in
the preceding subparagraph should not stop or abate, the
ranking officer of the law enforcement contingent shall
audibly issue a warning to the participants of the public
assembly, and after allowing a reasonable period of time
to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall
also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;
 (d) Isolated acts or incidents of disorder or breach of the
peace during the public assembly shall not constitute a
ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. – When the
public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute
violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the
exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law
enforcement agency or any person to disperse the public
assembly;
(g) Acts described hereunder if committed within one hundred
(100) meters from the area of activity of the public assembly or on
the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement
unit;
5. the interfering with or intentionally disturbing the holding of a
public assembly by the use of a motor vehicle, its horns and loud
sound systems.
Furthermore, there is need to address the situation adverted to by
petitioners where mayors do not act on applications for a permit
and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a
situation, as a necessary consequence and part of maximum
tolerance, rallyists who can show the police an application duly
filed on a given date can, after two days from said date, rally in
accordance with their application without the need to show a
permit, the grant of the permit being then presumed under the
law, and it will be the burden of the authorities to show that there
has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum
tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the
fundamental rights of our people, especially freedom of
expression and freedom of assembly. In several policy
addresses, Chief Justice Artemio V. Panganiban has repeatedly
vowed to uphold the liberty of our people and to nurture their
prosperity. He said that "in cases involving liberty, the scales of
justice should weigh heavily against the government and in favor
of the poor, the oppressed, the marginalized, the dispossessed
and the weak. Indeed, laws and actions that restrict fundamental
rights come to the courts with a heavy presumption against their
validity. These laws and actions are subjected
to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response
policy has no place in our legal firmament and must be struck
down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On
the other hand, B.P. No. 880 cannot be condemned as
unconstitutional; it does not curtail or unduly restrict freedoms; it
merely regulates the use of public places as to the time, place
and manner of assemblies. Far from being insidious, "maximum
tolerance" is for the benefit of rallyists, not the government. The
delegation to the mayors of the power to issue rally "permits" is
valid because it is subject to the constitutionally-sound "clear and
present danger" standard.
In this Decision, the Court goes even one step further in
safeguarding liberty by giving local governments a deadline of 30
days within which to designate specific freedom parks as ARTEMIO V. PANGANIBAN
provided under B.P. No. 880. If, after that period, no such parks Chief Justice
are so identified in accordance with Section 15 of the
law, all public parks and plazas of the municipality or city
concerned shall in effect be deemed freedom parks; no prior
permit of whatever kind shall be required to hold an assembly (On Leave)
LEONARDO A.
therein. The only requirement will be written notices to the police REYNATO S. PUNO
QUISUMBING
and the mayor’s office to allow proper coordination and orderly Associate Justice
activities. Asscociate Justice

WHEREFORE, the petitions are GRANTED in part, and

respondents, more particularly the Secretary of the Interior and
CONSUELO YNARES- ANGELINA SANDOVAL-
Local Governments, are DIRECTED to take all necessary steps
for the immediate compliance with Section 15 of Batas Pambansa SANTIAGO GUTIERREZ
No. 880 through the establishment or designation of at least one Associate Justice Asscociate Justice
suitable freedom park or plaza in every city and municipality of
the country. After thirty (30) days from the finality of this Decision,
subject to the giving of advance notices, no prior permit shall be
required to exercise the right to peaceably assemble and petition MA. ALICIA AUSTRIA-
ANTONIO T. CARPIO
in the public parks or plazas of a city or municipality that has not MARTINEZ
Associate Justice
yet complied with Section 15 of the law. Furthermore, Calibrated Asscociate Justice
Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and
respondents are ENJOINED to REFRAIN from using it and
to STRICTLY OBSERVE the requirements of maximum CONCHITA CARPIO
tolerance. The petitions are DISMISSED in all other respects, and RENATO C. CORONA
MORALES
the constitutionality of Batas Pambansa No. 880 Associate Justice
Asscociate Justice
is SUSTAINED.

No costs.
ROMEO J. CALLEJO,
DANTE O. TINGA
SO ORDERED. SR.
Asscociate Justice
Associate Justice
ADOLFO S. AZCUNA
Associate Justice

WE CONCUR:
 MINITA V. CHICO-
CANCIO C. GARCIA
NAZARIO
Asscociate Justice
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above Decision were reached
in consultation before the cases were assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice
G.R. No. 169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG
PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
Constantino, Jr., Froyel Yaneza, and Fahima Tajar,
Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary,
Manila City Mayor LITO ATIENZA, Chief of the Philippine
National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief
Maj. Gen. VIDAL QUEROL, and Western Police District Chief
Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro
Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie
Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida
Ramos, Mary Grace Gonzales, Michael Torres, Rendo
Sabusap, Precious Balute, Roxanne Magboo, Ernie Bautista,
Joseph de Jesus, Margarita Escober, Djoannalyn Janier,
Magdalena Sellote, Manny Quiazon, Ericson Dizon, Nenita
Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive
Secretary and in his personal capacity, ANGELO REYES, in
his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as
the Chief, Philippine National Police, VIDAL QUEROL, in his
official capacity as the Chief, National Capital Regional
Police Office (NCRPO), PEDRO BULAONG, in his official
capacity as the Chief, Manila Police District (MPD) AND ALL
OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE
INDIVIDUALS ACTING UNDER THEIR CONTROL,
SUPERVISION AND INSTRUCTIONS, Respondents.
x---------------------------------x
G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson
ELMER C. LABOG and Secretary General JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-
KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President, JOSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG,
FRANCISCO LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP
DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE
MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege
that they are citizens and taxpayers of the Philippines and that
their rights as organizations and individuals were violated when
the rally they participated in on October 6, 2005 was violently
dispersed by policemen implementing Batas Pambansa (B.P.)
No. 880.
The second group consists of 26 individual petitioners, Jess del
Prado, et al., in G.R. No. 169848,2 who allege that they were
injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently
dispersed by the police. They further assert that on October 5,
2005, a group they participated in marched to Malacañang to
protest issuances of the Palace which, they claim, put the country
under an "undeclared" martial rule, and the protest was likewise
dispersed violently and many among them were arrested and
suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in
G.R. No. 169881,3 allege that they conduct peaceful mass actions
and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly,
are affected by Batas Pambansa No. 880 and the policy of
"Calibrated Preemptive Response" (CPR) being followed to
implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-
sponsored was to be conducted at the Mendiola bridge but police
blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members.
They further allege that on October 6, 2005, a multi-sectoral rally
which KMU also co-sponsored was scheduled to proceed along
España Avenue in front of the University of Santo Tomas and
going towards Mendiola bridge. Police officers blocked them
along Morayta Street and prevented them from proceeding
further. They were then forcibly dispersed, causing injuries on
one of them.4 Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in
toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well
as the policy of CPR. They seek to stop violent dispersals of
rallies under the "no permit, no rally" policy and the CPR policy
recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right
Peaceably To Assemble And Petition The Government [And] For
Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public
Assembly Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the
people peaceably to assemble and petition the government for
redress of grievances is essential and vital to the strength and
stability of the State. To this end, the State shall ensure the free
exercise of such right without prejudice to the rights of others to
life, liberty and equal protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration,
march, parade, procession or any other form of mass or
concerted action held in a public place for the purpose of
presenting a lawful cause; or expressing an opinion to the
general public on any particular issue; or protesting or
influencing any state of affairs whether political, economic
or social; or petitioning the government for redress of
grievances.
The processions, rallies, parades, demonstrations, public
meetings and assemblages for religious purposes shall be
governed by local ordinances; Provided, however, That
the declaration of policy as provided in Section 2 of this
Act shall be faithfully observed.
The definition herein contained shall not include picketing
and other concerted action in strike areas by workers and
employees resulting from a labor dispute as defined by
the Labor Code, its implementing rules and regulations,
and by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard,
avenue, road, street, bridge or other thoroughfare, park,
 plaza, square, and/or any open space of public ownership
where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of
restraint that the military, police and other peace keeping
authorities shall observe during a public assembly or in
the dispersal of the same.
(d) "Modification of a permit" shall include the change of
the place and time of the public assembly, rerouting of the
parade or street march, the volume of loud-speakers or
sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written
permit shall be required for any person or persons to organize
and hold a public assembly in a public place. However, no permit
shall be required if the public assembly shall be done or made in
a freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which
shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election
campaign period as provided for by law are not covered by this
Act.
Sec. 5. Application requirements. – All applications for a permit
shall comply with the following guidelines:
(a) The applications shall be in writing and shall include
the names of the leaders or organizers; the purpose of
such public assembly; the date, time and duration thereof,
and place or streets to be used for the intended activity;
and the probable number of persons participating, the
transport and the public address systems to be used.
(b) The application shall incorporate the duty and
responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the
mayor of the city or municipality in whose jurisdiction the
intended activity is to be held, at least five (5) working
days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal
mayor shall cause the same to immediately be posted at
a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in
his behalf to issue or grant a permit unless there is clear
and convincing evidence that the public assembly will
create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act
on the application within two (2) working days from the
date the application was filed, failing which, the permit
shall be deemed granted. Should for any reason the
mayor or any official acting in his behalf refuse to accept
the application for a permit, said application shall be
posted by the applicant on the premises of the office of
the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and
grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served
on the applica[nt] within twenty-four hours.
 (e) If the mayor or any official acting in his behalf denies
the application or modifies the terms thereof in his permit,
the applicant may contest the decision in an appropriate
court of law.
(f) In case suit is brought before the Metropolitan Trial
Court, the Municipal Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the Intermediate
Appellate court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall
be required. A decision granting such permit or modifying
it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be
decided within twenty-four (24) hours from date of filing.
Cases filed hereunder shall be immediately endorsed to
the executive judge for disposition or, in his absence, to
the next in rank.
(h) In all cases, any decision may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals
are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public
assembly involve the use, for an appreciable length of time, of
any public highway, boulevard, avenue, road or street, the mayor
or any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to
the participants or reroute the vehicular traffic to another direction
so that there will be no serious or undue interference with the free
flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and
responsibility of the leaders and organizers of a public assembly
to take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in
accordance with the terms of the permit. These shall include but
not be limited to the following:
(a) To inform the participants of their responsibility under
the permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to
prevent non-demonstrators from disrupting the lawful
activities of the public assembly;
(c) To confer with local government officials concerned
and law enforcers to the end that the public assembly
may be held peacefully;
(d) To see to it that the public assembly undertaken shall
not go beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not
molest any person or do any act unduly interfering with
the rights of other persons not participating in the public
assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law
enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a
law enforcement contingent under the command of a responsible
police officer may be detailed and stationed in a place at least
one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be
imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties
always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble
and the freedom of expression is primordial. Towards this end,
law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal
with the demonstrators shall be in complete uniform with
their nameplates and units to which they belong displayed
prominently on the front and dorsal parts of their uniform
and must observe the policy of "maximum tolerance" as
herein defined;
(b) The members of the law enforcement contingent shall
not carry any kind of firearms but may be equipped with
baton or riot sticks, shields, crash helmets with visor, gas
masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any
similar anti-riot device shall not be used unless the public
assembly is attended by actual violence or serious threats
of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public
assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking
officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask
the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other
harmful objects from the participants are thrown at the
police or at the non-participants, or at any property
causing damage to such property, the ranking officer of
the law enforcement contingent shall audibly warn the
participants that if the disturbance persists, the public
assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in
the preceding subparagraph should not stop or abate, the
ranking officer of the law enforcement contingent shall
audibly issue a warning to the participants of the public
assembly, and after allowing a reasonable period of time
to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall
also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the
peace during the public assembly shall not constitute a
ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the
public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute
violations of the Act:
(a) The holding of any public assembly as defined in this
Act by any leader or organizer without having first secured
that written permit where a permit is required from the
office concerned, or the use of such permit for such
purposes in any place other than those set out in said
permit: Provided, however, That no person can be
punished or held criminally liable for participating in or
attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a
permit in violation of the provisions of this Act by the
mayor or any other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or
acknowledge receipt of the application for a permit by the
mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying
the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any
law enforcement agency or any person to disperse the
public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one
hundred (100) meters from the area of activity of the
public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or
device such as firearm, pillbox, bomb, and the
like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the
streets or thoroughfares;
4. the carrying of firearms by members of the law
enforcement unit;
5. the interfering with or intentionally disturbing the
holding of a public assembly by the use of a motor
vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of
any of the prohibited acts defined in the immediately preceding
section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by
imprisonment of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and
item 4, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished
by imprisonment of six months and one day to six years
without prejudice to prosecution under Presidential
Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph
(g) shall be punished by imprisonment of one day to thirty
days.
Sec. 15. Freedom parks. – Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall
in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations
and meetings may be held at any time without the need of any
prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be
declared invalid or unconstitutional, the validity or constitutionality
of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of
instructions, resolutions, orders, ordinances or parts thereof
which are inconsistent with the provisions of this Act are hereby
repealed, amended, or modified accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by
Malacañang dated September 21, 2005, shown in Annex "A" to
the Petition in G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO
ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-
government groups to inflame the political situation, sow disorder
and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to
strictly enforce a "no permit, no rally" policy, disperse groups that
run afoul of this standard and arrest all persons violating the laws
of the land as well as ordinances on the proper conduct of mass
actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu
of maximum tolerance. The authorities will not stand aside while
those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public
order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-
abiding citizens have the right to be protected by a vigilant and
proactive government.
We appeal to the detractors of the government to engage in
lawful and peaceful conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on
the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880
is clearly a violation of the Constitution and the International
Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can
stage a public assembly regardless of the presence or absence of
a clear and present danger. It also curtails the choice of venue
and is thus repugnant to the freedom of expression clause as the
time and place of a public assembly form part of the message for
which the expression is sought. Furthermore, it is not content-
neutral as it does not apply to mass actions in support of the
government. The words "lawful cause," "opinion," "protesting or
influencing" suggest the exposition of some cause not espoused
by the government. Also, the phrase "maximum tolerance" shows
that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation,
it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No.
880 is unconstitutional as it is a curtailment of the right to
peacefully assemble and petition for redress of grievances
because it puts a condition for the valid exercise of that right. It
also characterizes public assemblies without a permit as illegal
and penalizes them and allows their dispersal. Thus, its
provisions are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without
providing clear standards. The two standards stated in the laws
(clear and present danger and imminent and grave danger) are
inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act
that alters the standard of maximum tolerance set forth in B.P.
No. 880, aside from being void for being vague and for lack of
publication.
Finally, petitioners KMU, et al., argue that the Constitution sets
no limits on the right to assembly and therefore B.P. No. 880
cannot put the prior requirement of securing a permit. And even
assuming that the legislature can set limits to this right, the limits
provided are unreasonable: First, allowing the Mayor to deny the
permit on clear and convincing evidence of a clear and present
danger is too comprehensive. Second, the five-day requirement
to apply for a permit is too long as certain events require instant
public assembly, otherwise interest on the issue would possibly
wane.
As to the CPR policy, they argue that it is preemptive, that the
government takes action even before the rallyists can perform
their act, and that no law, ordinance or executive order supports
the policy. Furthermore, it contravenes the maximum tolerance
policy of B.P. No. 880 and violates the Constitution as it causes a
chilling effect on the exercise by the people of the right to
peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as
Executive Secretary, Manila City Mayor Lito Atienza, Chief, of
the Philippine National Police (PNP) Gen. Arturo Lomibao,
National Capital Region Police Office (NCRPO) Chief,
PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD)
Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as
Executive Secretary and in his personal capacity; Angelo Reyes,
as Secretary of the Interior and Local Governments; Arturo
Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro
Bulaong, as Chief, MPD, and all other public officers and private
individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive
Secretary, PNP Director General Arturo Lomibao, the
Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro
Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not
presented evidence that they had been "injured, arrested
or detained because of the CPR," and that "those
arrested stand to be charged with violating Batas
Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face.
Petitioners cannot honestly claim that the time, place and
manner regulation embodied in B.P. No. 880 violates the
three-pronged test for such a measure, to wit: (a) B.P. No.
880 is content-neutral, i.e., it has no reference to content
of regulated speech; (b) B.P. No. 880 is narrowly tailored
to serve a significant governmental interest, i.e., the
interest cannot be equally well served by a means that is
less intrusive of free speech interests; and (c) B.P. No.
880 leaves open alternative channels for communication
of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of
the law. Section 5 requires the statement of the public
assembly’s time, place and manner of conduct. It entails
traffic re-routing to prevent grave public inconvenience
and serious or undue interference in the free flow of
commerce and trade. Furthermore, nothing in B.P. No.
880 authorizes the denial of a permit on the basis of a
rally’s program content or the statements of the speakers
therein, except under the constitutional precept of the
"clear and present danger test." The status of B.P. No.
880 as a content-neutral regulation has been recognized
in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-
neutral regulation of the time, place and manner of
holding public assemblies and the law passes the test for
such regulation, namely, these regulations need only a
substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a
local chief executive has the authority to exercise police
power to meet "the demands of the common good in
terms of traffic decongestion and public convenience."
Furthermore, the discretion given to the mayor is narrowly
circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d),
(e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent.
"Clear and convincing evidence that the public assembly
will create a clear and present danger to public order,
public safety, public convenience, public morals or public
health" and "imminent and grave danger of a substantive
evil" both express the meaning of the "clear and present
danger test."10
7. CPR is simply the responsible and judicious use of
means allowed by existing laws and ordinances to protect
public interest and restore public order. Thus, it is not
accurate to call it a new rule but rather it is a more pro-
active and dynamic enforcement of existing laws,
regulations and ordinances to prevent chaos in the
streets. It does not replace the rule of maximum tolerance
in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his
Comment that the petition in G.R. No. 169838 should be
dismissed on the ground that Republic Act No. 7160 gives the
Mayor power to deny a permit independently of B.P. No. 880; that
his denials of permits were under the "clear and present danger"
rule as there was a clamor to stop rallies that disrupt the economy
and to protect the lives of other people; that J. B. L. Reyes v.
Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have
affirmed the constitutionality of requiring a permit; that the permit
is for the use of a public place and not for the exercise of rights;
and that B.P. No. 880 is not a content-based regulation because
it covers all rallies.
The petitions were ordered consolidated on February 14, 2006.
After the submission of all the Comments, the Court set the cases
for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:
1. On the constitutionality of Batas Pambansa No. 880,
specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof,
and Republic Act No. 7160:
(a) Are these content-neutral or content-based
regulations?
(b) Are they void on grounds of overbreadth or
vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to
Mayors?
 (e) Do they violate international human rights
treaties and the Universal Declaration of Human
Rights?
2. On the constitutionality and legality of the policy of
Calibrated Preemptive Response (CPR):
(a) Is the policy void on its face or due to
vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the
rallies of September 26 and October 4, 5 and 6,
2005?
During the course of the oral arguments, the following
developments took place and were approved and/or noted by the
Court:
1. Petitioners, in the interest of a speedy resolution of the
petitions, withdrew the portions of their petitions raising
factual issues, particularly those raising the issue of
whether B.P. No. 880 and/or CPR is void as applied to the
rallies of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of
the Chief Justice that CPR should no longer be used as a
legal term inasmuch as, according to respondents, it was
merely a "catchword" intended to clarify what was thought
to be a misunderstanding of the maximum tolerance
policy set forth in B.P. No. 880 and that, as stated in the
affidavit executed by Executive Secretary Eduardo Ermita
and submitted to the Ombudsman, it does not replace
B.P. No. 880 and the maximum tolerance policy
embodied in that law.
The Court will now proceed to address the principal issues, taking
into account the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right
as citizens to engage in peaceful assembly and exercise the right
of petition, as guaranteed by the Constitution, is directly affected
by B.P. No. 880 which requires a permit for all who would publicly
assemble in the nation’s streets and parks. They have, in fact,
purposely engaged in public assemblies without the required
permits to press their claim that no such permit can be validly
required without violating the Constitutional guarantee.
Respondents, on the other hand, have challenged such action as
contrary to law and dispersed the public assemblies held without
the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of
grievances.
The first point to mark is that the right to peaceably assemble and
petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys
primacy in the realm of constitutional protection. For these rights
constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected.
As stated in Jacinto v. CA,15 the Court, as early as the onset of
this century, in U.S. v. Apurado,16 already upheld the right to
assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful
assembly to petition the government for a redress of grievances
and, for that matter, to organize or form associations for purposes
not contrary to law, as well as to engage in peaceful concerted
activities. These rights are guaranteed by no less than the
Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII.
Jurisprudence abounds with hallowed pronouncements defending
and promoting the people’s exercise of these rights. As early as
the onset of this century, this Court in U.S. vs. Apurado, already
upheld the right to assembly and petition and even went as far as
to acknowledge:
"It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances
whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and the greater, the
grievance and the more intense the feeling, the less perfect, as a
rule will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to
seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the
assembly as a seditious and tumultuous rising against the
authorities, then the right to assemble and to petition for redress
of grievances would become a delusion and a snare and the
attempt to exercise it on the most righteous occasion and in the
most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the
purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of disorderly
conduct occur on such occasions, the guilty individuals should be
sought out and punished therefor, but the utmost discretion must
be exercised in drawing the line
between disorderly and seditious conduct and between an
essentially peaceable assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the
primacy of freedom of speech and to assembly and petition over
comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while
sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and
petition the government for redress of grievances, are
fundamental personal rights of the people recognized and
guaranteed by the constitutions of democratic countries. But it is
a settled principle growing out of the nature of well-ordered civil
societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, nor injurious to the rights
of the community or society. The power to regulate the exercise
of such and other constitutional rights is termed the sovereign
"police power," which is the power to prescribe regulations, to
promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police
power is exercised by the government through its legislative
branch by the enactment of laws regulating those and other
constitutional and civil rights, and it may be delegated to political
subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city
councils to enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits,
as follows:
1. It is thus clear that the Court is called upon to protect
the exercise of the cognate rights to free speech and
peaceful assembly, arising from the denial of a permit.
The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble and petition the
Government for redress of grievances." Free speech, like
free press, may be identified with the liberty to discuss
publicly and truthfully any matter of public concern without
censorship or punishment. There is to be then no
previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings
unless there be a "clear and present danger of a
substantive evil that [the State] has a right to prevent."
Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters
of public concern. It is entitled to be accorded the utmost
deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom
of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even
prior to the 1935 Constitution, Justice Malcolm had
occasion to stress that it is a necessary consequence of
our republican institutions and complements the right of
free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American
Supreme Court in Thomas v. Collins, it was not by
accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of
grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary
is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger,
of a character both grave and imminent, of a serious evil
to public safety, public morals, public health, or any other
legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of
expression and peaceable assembly better expressed
than in this excerpt from an opinion of Justice Frankfurter:
"It must never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment. Back of the
guaranty of free speech lay faith in the power of an appeal
to reason by all the peaceful means for gaining access to
the mind. It was in order to avert force and explosions due
to restrictions upon rational modes of communication that
the guaranty of free speech was given a generous scope.
But utterance in a context of violence can lose its
significance as an appeal to reason and become part of
an instrument of force. Such utterance was not meant to
be sheltered by the Constitution." What was rightfully
stressed is the abandonment of reason, the utterance,
whether verbal or printed, being in a context of violence. It
must always be remembered that this right likewise
provides for a safety valve, allowing parties the
opportunity to give vent to their views, even if contrary to
the prevailing climate of opinion. For if the peaceful
means of communication cannot be availed of, resort to
non-peaceful means may be the only alternative. Nor is
this the sole reason for the expression of dissent. It
means more than just the right to be heard of the person
who feels aggrieved or who is dissatisfied with things as
they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to
ensure a true ferment of ideas. There are, of course, well-
defined limits. What is guaranteed is peaceable assembly.
One may not advocate disorder in the name of protest,
much less preach rebellion under the cloak of dissent.
The Constitution frowns on disorder or tumult attending a
rally or assembly. Resort to force is ruled out and
outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early
Philippine case, penned in 1907 to be precise, United
States v. Apurado: "It is rather to be expected that more
or less disorder will mark the public assembly of the
people to protest against grievances whether real or
imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less
perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." It bears
repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to one’s destructive
urges is to call for condemnation. It is to make a mockery
of the high estate occupied by intellectual liberty in our
scheme of values.
There can be no legal objection, absent the existence of a
clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would
start. The Philippines is committed to the view expressed
in the plurality opinion, of 1939 vintage, of Justice Roberts
in Hague v. CIO: "Whenever the title of streets and parks
may rest, they have immemorially been held in trust for
the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and
liberties of citizens. The privilege of a citizen of the United
States to use the streets and parks for communication of
views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and
convenience, and in consonance with peace and good
order; but must not, in the guise of regulation, be abridged
or denied." The above excerpt was quoted with approval
in Primicias v. Fugoso. Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and
thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza
"being a promenade for public use," which certainly is not
the only purpose that it could serve. To repeat, there can
be no valid reason why a permit should not be granted for
the proposed march and rally starting from a public park
that is the Luneta.
4. Neither can there be any valid objection to the use of
the streets to the gates of the US embassy, hardly two
blocks away at the Roxas Boulevard. Primicias v. Fugoso
has resolved any lurking doubt on the matter. In holding
that the then Mayor Fugoso of the City of Manila should
grant a permit for a public meeting at Plaza Miranda in
Quiapo, this Court categorically declared: "Our conclusion
finds support in the decision in the case of Willis Cox v.
State of New Hampshire, 312 U.S., 569. In that case, the
statute of New Hampshire P.L. chap. 145, section 2,
providing that no parade or procession upon any ground
abutting thereon, shall be permitted unless a special
license therefor shall first be obtained from the selectmen
of the town or from licensing committee,’ was construed
by the Supreme Court of New Hampshire as not
conferring upon the licensing board unfettered discretion
to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941)
penned by Chief Justice Hughes affirming the judgment of
the State Supreme Court, held that ‘a statute requiring
persons using the public streets for a parade or
procession to procure a special license therefor from the
local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press,
where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of
licenses, to a consideration of the time, place, and
manner of the parade or procession, with a view to
conserving the public convenience and of affording an
opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored:
"Civil liberties, as guaranteed by the Constitution, imply
the existence of an organized society maintaining public
order without which liberty itself would be lost in the
excesses of unrestricted abuses. The authority of a
municipality to impose regulations in order to assure the
safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with
civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the
most familiar illustration of this recognition of social need.
Where a restriction of the use of highways in that relation
is designed to promote the public convenience in the
interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances
would be entitled to protection."
xxx
6. x x x The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: "The
question, if the rights of free speech and peaceable
assembly are to be preserved, is not as to the auspices
under which the meeting is held but as to its purpose; not
as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of
speech which the Constitution protects." There could be
danger to public peace and safety if such a gathering
were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties
should be held accountable. It is true that the licensing
official, here respondent Mayor, is not devoid of discretion
in determining whether or not a permit would be granted.
It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may
possibly occur but of what may probably occur, given all
the relevant circumstances, still the assumption –
especially so where the assembly is scheduled for a
specific public place – is that the permit must be for the
assembly being held there. The exercise of such a right,
in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place."
xxx
8. By way of a summary. The applicants for a permit to
hold an assembly should inform the licensing authority of
the date, the public place where and the time when it will
take place. If it were a private place, only the consent of
the owner or the one entitled to its legal possession is
required. Such application should be filed well ahead in
time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the
permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification
that the clear and present danger test be the standard for
the decision reached. If he is of the view that there is such
an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his
decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper judicial
authority. Free speech and peaceable assembly, along
with the other intellectual freedoms, are highly ranked in
our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary, -- even more so
than on the other departments – rests the grave and
delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no
sanctifying phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes "as the
sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do
precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision
in Reyes.
The provisions of B.P. No. 880 practically codify the ruling
in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366,
November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The
applicants for a permit to hold
an assembly should inform
the licensing authority of the
date, the public
place where and the time
when it will take place. If it
were a private place, only the
consent of the owner or the
one entitled to its legal
possession is required. Such
application should be filed
well ahead in time to enable
the public official concerned
to appraise whether there
may be valid objections to
the grant of the permit or to
its grant but at another public
place. It is an indispensable
condition to such refusal or
modification that the clear
and present danger test be
the standard for the decision
reached. If he is of the view
that there is such an
imminent and grave danger
of a substantive evil, the
applicants must be heard on
B.P. No. 880
Sec. 4. Permit when required
and when not required.-- A
written permit shall be
required for any person or
persons to organize and hold
a public assembly in a public
place. However, no permit
shall be required if the public
assembly shall be done or
made in a freedom park duly
established by law or
ordinance or in private
property, in which case only
the consent of the owner or
the one entitled to its legal
possession is required, or in
the campus of a government-
owned and operated
educational institution which
shall be subject to the rules
and regulations of said
educational institution.
Political meetings or rallies
held during any election
campaign period as provided
for by law are not covered by
this Act.
Sec. 5. Application
requirements.-- All
applications for a permit shall
comply with the following
the matter. Thereafter, his
decision, whether favorable
or adverse, must be
transmitted to them at the
earliest opportunity. Thus if
so minded, they can have
recourse to the proper
judicial authority.
guidelines:
(a) The applications
shall be in writing and
shall include the
names of the leaders
or organizers; the
purpose of such
public assembly; the
date, time and
duration thereof, and
place or streets to be
used for the intended
activity; and the
probable number of
persons participating,
the transport and the
public address
systems to be used.
(b) The application
shall incorporate the
duty and
responsibility of
applicant under
Section 8 hereof.
(c) The application
shall be filed with the
office of the mayor of
the city or
municipality in whose
jurisdiction the
intended activity is to
be held, at least five
 (5) working days public health.
before the scheduled
public assembly. (b) The mayor or any
official acting in his
(d) Upon receipt of behalf shall act on
the application, which the application within
must be duly two (2) working days
acknowledged in from the date the
writing, the office of application was filed,
the city or municipal failing which, the
mayor shall cause the permit shall be
same to immediately deemed granted.
be posted at a Should for any
conspicuous place in reason the mayor or
the city or municipal any official acting in
building. his behalf refuse to
accept the application
Sec. 6. Action to be taken on for a permit, said
the application. – application shall be
posted by the
(a) It shall be the duty applicant on the
of the mayor or any premises of the office
official acting in his of the mayor and
behalf to issue or shall be deemed to
grant a permit unless have been filed.
there is clear and
convincing evidence (c) If the mayor is of
that the public the view that there is
assembly will create imminent and grave
a clear and present danger of a
danger to public substantive evil
order, public safety, warranting the denial
public convenience, or modification of the
public morals or permit, he shall
immediately inform
the applicant who hours after receipt of
must be heard on the the same. No appeal
matter. bond and record on
appeal shall be
(d) The action on the required. A decision
permit shall be in granting such permit
writing and served on or modifying it in
the applica[nt] within terms satisfactory to
twenty-four hours. the applicant shall be
immediately
(e) If the mayor or executory.
any official acting in
his behalf denies the (g) All cases filed in
application or court under this
modifies the terms section shall be
thereof in his permit, decided within
the applicant may twenty-four (24)
contest the decision hours from date of
in an appropriate filing. Cases filed
court of law. hereunder shall be
immediately
(f) In case suit is endorsed to the
brought before the executive judge for
Metropolitan Trial disposition or, in his
Court, the Municipal absence, to the next
Trial Court, the in rank.
Municipal Circuit Trial
Court, the Regional (h) In all cases, any
Trial Court, or the decision may be
Intermediate appealed to the
Appellate Court, its Supreme Court.
decisions may be
appealed to the (i) Telegraphic
appropriate court appeals to be
within forty-eight (48) followed by formal

appeals are hereby
allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban
of public assemblies but a restriction that simply regulates the
time, place and manner of the assemblies. This was adverted to
in Osmeña v. Comelec,20 where the Court referred to it as a
"content-neutral" regulation of the time, place, and manner of
holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows
that it refers to all kinds of public assemblies22 that would use
public places. The reference to "lawful cause" does not make it
content-based because assemblies really have to be for lawful
causes, otherwise they would not be "peaceable" and entitled to
protection. Neither are the words "opinion," "protesting" and
"influencing" in the definition of public assembly content based,
since they can refer to any subject. The words "petitioning the
government for redress of grievances" come from the wording of
the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyists and is
independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of
clear and present danger to public order, public safety, public
convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on
Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and
association.
xxx
Article 29
1. Everyone has duties to the community in which alone
the free and full development of his personality is
possible.
2. In the exercise of his rights and freedoms, everyone
shall be subject only to such limitations as are determined
by law solely for the purpose of securing due recognition
and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order
and the general welfare in a democratic society.
3. These rights and freedoms may in no case be
exercised contrary to the purposes and principles of the
United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression;
this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of
this article carries with it special duties and
 responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided
by law and are necessary:
(a) For respect of the rights or reputations of
others;
(b) For the protection of national security or of
public order (ordre public), or of public health or
morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere
vague in its provisions. "Public" does not have to be defined. Its
ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of
people distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law
refers to "rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place." So
it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right
to peaceful assembly and petition only to the extent needed to
avoid a clear and present danger of the substantive evils
Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the
speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a
precise and sufficient standard – the clear and present danger
test stated in Sec. 6(a). The reference to "imminent and grave
danger of a substantive evil" in Sec. 6(c) substantially means the
same thing and is not an inconsistent standard. As to whether
respondent Mayor has the same power independently under
Republic Act No. 716024 is thus not necessary to resolve in these
proceedings, and was not pursued by the parties in their
arguments.
Finally, for those who cannot wait, Section 15 of the law provides
for an alternative forum through the creation of freedom parks
where no prior permit is needed for peaceful assembly and
petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall
in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations
and meetings may be held at any time without the need of any
prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this
provision.
The Solicitor General stated during the oral arguments that, to his
knowledge, only Cebu City has declared a freedom park – Fuente
Osmeña.
That of Manila, the Sunken Gardens, has since been converted
into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate
that every city and municipality set aside a freedom park within
six months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken
for granted amidst the swell of freedom that rose from the
peaceful revolution of 1986.
Considering that the existence of such freedom parks is an
essential part of the law’s system of regulation of the people’s
exercise of their right to peacefully assemble and petition, the
Court is constrained to rule that after thirty (30) days from the
finality of this Decision, no prior permit may be required for the
exercise of such right in any public park or plaza of a city or
municipality until that city or municipality shall have complied with
Section 15 of the law. For without such alternative forum, to deny
the permit would in effect be to deny the right. Advance notices
should, however, be given to the authorities to ensure proper
coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier,
the Solicitor General has conceded that the use of the term
should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No.
880. This is stated in the Affidavit of respondent Executive
Secretary Eduardo Ermita, submitted by the Solicitor General,
thus:
14. The truth of the matter is the policy of "calibrated preemptive
response" is in consonance with the legal definition of "maximum
tolerance" under Section 3 (c) of B.P. Blg. 880, which is the
"highest degree of restraint that the military, police and other
peacekeeping authorities shall observe during a public assembly
or in the dispersal of the same." Unfortunately, however, the
phrase "maximum tolerance" has acquired a different meaning
over the years. Many have taken it to mean inaction on the part of
law enforcers even in the face of mayhem and serious threats to
public order. More so, other felt that they need not bother secure
a permit when holding rallies thinking this would be "tolerated."
Clearly, the popular connotation of "maximum tolerance" has
departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance
is provided under the same law which requires all pubic
assemblies to have a permit, which allows the dispersal of rallies
without a permit, and which recognizes certain instances when
water cannons may be used. This could only mean that
"maximum tolerance" is not in conflict with a "no permit, no rally
policy" or with the dispersal and use of water cannons under
certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a
mass action is. Our law enforcers should calibrate their response
based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is
being enforced in lieu of maximum tolerance I clearly was not
referring to its legal definition but to the distorted and much
abused definition that it has now acquired. I only wanted to
disabuse the minds of the public from the notion that law
enforcers would shirk their responsibility of keeping the peace
even when confronted with dangerously threatening behavior. I
wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus
I said, "we have instructed the PNP as well as the local
government units to strictly enforce a no permit, no rally policy . . .
arrest all persons violating the laws of the land . . . unlawful mass
actions will be dispersed." None of these is at loggerheads with
the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd
for complainants to even claim that I ordered my co-respondents
to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance
mandated by B.P. No. 880, CPR serves no valid purpose if it
means the same thing as maximum tolerance and is illegal if it
means something else. Accordingly, what is to be followed is and
should be that mandated by the law itself, namely, maximum
tolerance, which specifically means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
 xxx
(c) "Maximum tolerance" means the highest degree of restraint
that the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. – Law
enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a
law enforcement contingent under the command of a responsible
police officer may be detailed and stationed in a place at least
one hundred (100) meters away from the area of activity ready to
maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be
imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties
always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble
and the freedom of expression is primordial. Towards this end,
1avvphil.net
law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal
with the demonstrators shall be in complete uniform with
their nameplates and units to which they belong displayed
prominently on the front and dorsal parts of their uniform
and must observe the policy of "maximum tolerance" as
herein defined;
(b) The members of the law enforcement contingent shall
not carry any kind of firearms but may be equipped with
baton or riot sticks, shields, crash helmets with visor, gas
masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any
similar anti-riot device shall not be used unless the public
assembly is attended by actual violence or serious threats
of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public
assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking
officer of the law enforcement contingent shall call the
attention of the leaders of the public assembly and ask
the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other
harmful objects from the participants are thrown at the
police or at the non-participants, or at any property
causing damage to such property, the ranking officer of
the law enforcement contingent shall audibly warn the
participants that if the disturbance persists, the public
assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in
the preceding subparagraph should not stop or abate, the
ranking officer of the law enforcement contingent shall
audibly issue a warning to the participants of the public
assembly, and after allowing a reasonable period of time
to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall
also be made during the public assembly unless he
violates during the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;
 (d) Isolated acts or incidents of disorder or breach of the
peace during the public assembly shall not constitute a
ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. – When the
public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute
violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the
exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law
enforcement agency or any person to disperse the public
assembly;
(g) Acts described hereunder if committed within one hundred
(100) meters from the area of activity of the public assembly or on
the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement
unit;
5. the interfering with or intentionally disturbing the holding of a
public assembly by the use of a motor vehicle, its horns and loud
sound systems.
Furthermore, there is need to address the situation adverted to by
petitioners where mayors do not act on applications for a permit
and when the police demand a permit and the rallyists could not
produce one, the rally is immediately dispersed. In such a
situation, as a necessary consequence and part of maximum
tolerance, rallyists who can show the police an application duly
filed on a given date can, after two days from said date, rally in
accordance with their application without the need to show a
permit, the grant of the permit being then presumed under the
law, and it will be the burden of the authorities to show that there
has been a denial of the application, in which case the rally may
be peacefully dispersed following the procedure of maximum
tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the
fundamental rights of our people, especially freedom of
expression and freedom of assembly. In several policy
addresses, Chief Justice Artemio V. Panganiban has repeatedly
vowed to uphold the liberty of our people and to nurture their
prosperity. He said that "in cases involving liberty, the scales of
justice should weigh heavily against the government and in favor
of the poor, the oppressed, the marginalized, the dispossessed
and the weak. Indeed, laws and actions that restrict fundamental
rights come to the courts with a heavy presumption against their
validity. These laws and actions are subjected
to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response
policy has no place in our legal firmament and must be struck
down as a darkness that shrouds freedom. It merely confuses our
people and is used by some police agents to justify abuses. On
the other hand, B.P. No. 880 cannot be condemned as
unconstitutional; it does not curtail or unduly restrict freedoms; it
merely regulates the use of public places as to the time, place
and manner of assemblies. Far from being insidious, "maximum
tolerance" is for the benefit of rallyists, not the government. The
delegation to the mayors of the power to issue rally "permits" is
valid because it is subject to the constitutionally-sound "clear and
present danger" standard.
In this Decision, the Court goes even one step further in
safeguarding liberty by giving local governments a deadline of 30
days within which to designate specific freedom parks as ARTEMIO V. PANGANIBAN
provided under B.P. No. 880. If, after that period, no such parks Chief Justice
are so identified in accordance with Section 15 of the
law, all public parks and plazas of the municipality or city
concerned shall in effect be deemed freedom parks; no prior
permit of whatever kind shall be required to hold an assembly (On Leave)
LEONARDO A.
therein. The only requirement will be written notices to the police REYNATO S. PUNO
QUISUMBING
and the mayor’s office to allow proper coordination and orderly Associate Justice
activities. Asscociate Justice

WHEREFORE, the petitions are GRANTED in part, and

respondents, more particularly the Secretary of the Interior and
CONSUELO YNARES- ANGELINA SANDOVAL-
Local Governments, are DIRECTED to take all necessary steps
for the immediate compliance with Section 15 of Batas Pambansa SANTIAGO GUTIERREZ
No. 880 through the establishment or designation of at least one Associate Justice Asscociate Justice
suitable freedom park or plaza in every city and municipality of
the country. After thirty (30) days from the finality of this Decision,
subject to the giving of advance notices, no prior permit shall be
required to exercise the right to peaceably assemble and petition MA. ALICIA AUSTRIA-
ANTONIO T. CARPIO
in the public parks or plazas of a city or municipality that has not MARTINEZ
Associate Justice
yet complied with Section 15 of the law. Furthermore, Calibrated Asscociate Justice
Preemptive Response (CPR), insofar as it would purport to differ
from or be in lieu of maximum tolerance, is NULL and VOID and
respondents are ENJOINED to REFRAIN from using it and
to STRICTLY OBSERVE the requirements of maximum CONCHITA CARPIO
tolerance. The petitions are DISMISSED in all other respects, and RENATO C. CORONA
MORALES
the constitutionality of Batas Pambansa No. 880 Associate Justice
Asscociate Justice
is SUSTAINED.

No costs.
ROMEO J. CALLEJO,
DANTE O. TINGA
SO ORDERED. SR.
Asscociate Justice
Associate Justice
ADOLFO S. AZCUNA
Associate Justice

WE CONCUR:
 MINITA V. CHICO-
CANCIO C. GARCIA
NAZARIO
Asscociate Justice
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above Decision were reached
in consultation before the cases were assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice
G.R. No. 175241 February 24, 2010
INTEGRATED BAR OF THE PHILIPPINES represented by its
National President, Jose Anselmo I. Cadiz, H. HARRY L.
ROQUE, and JOEL RUIZ BUTUYAN, Petitioners,
vs.
HONORABLE MANILA MAYOR JOSE "LITO"
ATIENZA, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers H.
Harry L. Roque and Joel R. Butuyan appeal the June 28, 2006
Decision2 and the October 26, 2006 Resolution3 of the Court of
Appeals that found no grave abuse of discretion on the part of
respondent Jose "Lito" Atienza, the then mayor of Manila, in
granting a permit to rally in a venue other than the one applied for
by the IBP.
On June 15, 2006, the IBP, through its then National President
Jose Anselmo Cadiz (Cadiz), filed with the Office of the City
Mayor of Manila a letter application4 for a permit to rally at the foot
of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m.
to be participated in by IBP officers and members, law students
and multi-sectoral organizations.
Respondent issued a permit5 dated June 16, 2006 allowing the
IBP to stage a rally on given date but indicated therein Plaza
Miranda as the venue, instead of Mendiola Bridge, which permit
the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of
Appeals a petition for certiorari docketed as CA-G.R. SP No.
94949.6 The petition having been unresolved within 24 hours from
its filing, petitioners filed before this Court on June 22, 2006 a
petition for certiorari docketed as G.R. No. 172951 which assailed
the appellate court’s inaction or refusal to resolve the petition
within the period provided under the Public Assembly Act of
1985.7
The Court, by Resolutions of July 26, 2006, August 30, 2006 and
November 20, 2006, respectively, denied the petition for being
moot and academic, denied the relief that the petition be heard on
the merits in view of the pendency of CA-G.R. SP No. 94949, and
denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge,
after Cadiz discussed with P/Supt. Arturo Paglinawan whose
contingent from the Manila Police District (MPD) earlier barred
petitioners from proceeding thereto. Petitioners allege that the
participants voluntarily dispersed after the peaceful conduct of the
program.
The MPD thereupon instituted on June 26, 2006 a criminal
action,8 docketed as I.S. No. 06I-12501, against Cadiz for
violating the Public Assembly Act in staging a rally at a venue not
indicated in the permit, to which charge Cadiz filed a Counter-
Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No.
94949, by the first assailed issuance, that the petition became
moot and lacked merit. The appellate court also denied
petitioners’ motion for reconsideration by the second assailed
issuance.
Hence, the filing of the present petition for review on certiorari, to
which respondent filed his Comment of November 18, 2008 which
merited petitioners’ Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding
that the modification of the venue in IBP’s rally permit does not
constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs
contrary to the Pubic Assembly Act and violates their
constitutional right to freedom of expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June
21, 2006 became moot upon the passing of the date of the rally
on June 22, 2006.
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it
on ground of mootness. However, even in cases where
supervening events had made the cases moot, this Court did not
hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar and public.
Moreover, as an exception to the rule on mootness, courts will
decide a question otherwise moot if it is capable of repetition, yet
evading review.9
In the present case, the question of the legality of a modification
of a permit to rally will arise each time the terms of an intended
rally are altered by the concerned official, yet it evades review,
owing to the limited time in processing the application where the
shortest allowable period is five days prior to the assembly. The
susceptibility of recurrence compels the Court to definitively
resolve the issue at hand.
Respecting petitioners’ argument that the issues presented in CA-
G.R. SP No. 94949 pose a prejudicial question to the criminal
case against Cadiz, the Court finds it improper to resolve the
same in the present case.
Under the Rules,10 the existence of a prejudicial question is a
ground in a petition to suspend proceedings in a criminal action.
Since suspension of the proceedings in the criminal action may
be made only upon petition and not at the instance of the judge or
the investigating prosecutor,11 the latter cannot take cognizance
of a claim of prejudicial question without a petition to suspend
being filed. Since a petition to suspend can be filed only in the
criminal action,12 the determination of the pendency of a
prejudicial question should be made at the first instance in the
criminal action, and not before this Court in an appeal from the
civil action.
In proceeding to resolve the petition on the merits, the appellate
court found no grave abuse of discretion on the part of
respondent because the Public Assembly Act does not
categorically require respondent to specify in writing the imminent
and grave danger of a substantive evil which warrants the denial
or modification of the permit and merely mandates that the action
taken shall be in writing and shall be served on respondent within
24 hours. The appellate court went on to hold that respondent is
authorized to regulate the exercise of the freedom of expression
and of public assembly which are not absolute, and that the
challenged permit is consistent with Plaza Miranda’s designation
as a freedom park where protest rallies are allowed without
permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -
(a) It shall be the duty of the mayor or any official acting in
his behalf to issue or grant a permit unless there is clear
and convincing evidence that the public assembly will
create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act
on the application within two (2) working days from the
date the application was filed, failing which, the permit
shall be deemed granted. Should for any reason the
mayor or any official acting in his behalf refuse to accept
the application for a permit, said application shall be
posted by the applicant on the premises of the office of
the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and
grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served
on the application [sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies
the application or modifies the terms thereof in his permit,
the applicant may contest the decision in an appropriate
court of law.
(f) In case suit is brought before the Metropolitan Trial
Court, the Municipal Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the Intermediate
Appellate Court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt
of the same. No appeal bond and record on appeal shall
be required. A decision granting such permit or modifying
it in terms satisfactory to the applicant shall, be
immediately executory.
(g) All cases filed in court under this Section shall be
decided within twenty-four (24) hours from date of filing.
Cases filed hereunder shall be immediately endorsed to
the executive judge for disposition or, in his absence, to
the next in rank.
(h) In all cases, any decision may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals
are hereby allowed. (underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.
Ermita,13 the Court reiterated:
x x x Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference
and respect. It is not to be limited, much less denied, except
on a showing, as is the case with freedom of expression, of a
clear and present danger of a substantive evil that the state
has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the
right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme
Court in Thomas v. Collins, it was not by accident or coincidence
that the rights to freedom of speech and of the press were
coupled in a single guarantee with the rights of the people
peaceably to assemble and to petition the government for redress
of grievances. All these rights, while not identical, are
inseparable. In every case, therefore, where there is a limitation
placed on the exercise of this right, the judiciary is called upon to
examine the effects of the challenged governmental
actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of
democratic institutions, is the danger, of a character both
grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public
interest.14 (emphasis supplied)
The Court in Bayan stated that the provisions of the Public
Assembly Act of 1985 practically codified the 1983 ruling
in Reyes v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the
Public Assembly Act with the pertinent portion of the Reyes case,
the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether there
may be valid objections to the grant of the permit or to its grant
but at another public place. It is an indispensable condition to
such refusal or modification that the clear and present danger test
be the standard for the decision reached. If he is of the view that
there is such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter. Thereafter, his
decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, they can have
recourse to the proper judicial authority.16 (italics and
underscoring supplied)
In modifying the permit outright, respondent gravely abused his
discretion when he did not immediately inform the IBP who
should have been heard first on the matter of his perceived
imminent and grave danger of a substantive evil that may warrant
the changing of the venue. The opportunity to be heard precedes
the action on the permit, since the applicant may directly go to
court after an unfavorable action on the permit. 1avvphi1
Respondent failed to indicate how he had arrived at modifying the
terms of the permit against the standard of a clear and present
danger test which, it bears repeating, is an indispensable
condition to such modification. Nothing in the issued permit
adverts to an imminent and grave danger of a substantive evil,
which "blank" denial or modification would, when granted
imprimatur as the appellate court would have it, render illusory
any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would
be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what
may possibly occur but of what may probably occur, given all the
relevant circumstances, still the assumption – especially so where
the assembly is scheduled for a specific public place – is that the
permit must be for the assembly being held there. The exercise
of such a right, in the language of Justice Roberts, speaking
for the American Supreme Court, is not to be "abridged on
the plea that it may be exercised in some other
place."17 (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis
or explanation for his action. It smacks of whim and caprice for
respondent to just impose a change of venue for an assembly
that was slated for a specific public place. It is thus reversible
error for the appellate court not to have found such grave abuse
of discretion and, under specific statutory
provision, not to have modified the permit "in terms satisfactory to
the applicant."18
WHEREFORE, the assailed Decision and Resolution of the Court
of Appeals in CA-G.R. SP No. 94949 are REVERSED. The Court
DECLARES that respondent committed grave abuse of discretion
in modifying the rally permit issued on June 16, 2006 insofar as it
altered the venue from Mendiola Bridge to Plaza Miranda.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
TERESITA J. LEONARDO-
LUCAS P. BERSAMIN
DE CASTRO
 Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, 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’s Division.

REYNATO S. PUNO
Chief Justice
 FIRST DIVISION
[G.R. No. 127930. December 15, 2000.]
MIRIAM COLLEGE FOUNDATION, INC., Petitioner, v.
HON. COURT OF APPEALS, JASPER BRIONES,
JEROME GOMEZ, RELLY CARPIO, ELIZABETH
VALDEZCO, JOSE MARI RAMOS, CAMILLE
PORTUGAL, JOEL TAN and GERALD GARY
RENACIDO, Respondents.
DECISION
KAPUNAN, J.:
"Obscene," "vulgar," "indecent," "gross," "sexually
explicit," "injurious to young readers," and devoid of all
moral values." 1 This was now some members of the
Miriam College community allegedly described the
contents of the September-October 1994 issue (Vol. 41,
No. 14) of Miriam College’s school paper (Chi-Rho), and
magazine (Ang Magasing Pampanitikan ng Chi-Rho). The
articles in the Chi-Rho included: chanrob1es virtua1 1aw 1ibrary
. . . a story, clearly fiction, entitled ‘Kaskas’ written by
one Gerald Garry Renacido . . .
Kaskas, written in Tagalog, treats of the experience of a
group of young, male, combo players who, one evening,
after their performance went to see a bold show in a
place called "Flirtation." This was the way the author
described the group’s exposure during that stage show:
1aw 1ibrary
"Sige, sa Flirtation tayo. Happy hour na halos . . . he! he!
he! sambit ng kanilang bokalistang kanina pa di maitago
ang pagkahayok sa karneng babae na kanyang
pinananabikan nuong makalawa pa, susog naman ang
tropa.
". . . Pumasok ang unang mananayaw. Si ‘Red Raven’
ayon sa emcee. Nakasuot lamang ng bikining pula na
may palamuting dilaw sa gilid-gilid at sa bandang utong.
Nagsimula siya sa kanyang pag-giling nang tumugtog na
ang unang tono ng "Goodbye" ng Air Supply. Dahan-
dahan ang kanyang mga malalantik at mapang-akit na
galaw sa una. Mistulang sawa na nililingkis ang hangin,
paru-parong padapo-dapo sa mga bulaklak na lamesa,
di-upang umamoy o kumuha ng nektar, ngunit para
ipaglantaran ang sariling bulaklak at ang angkin nitong
malansang nektar.
"Kaskas mo babe, sige . . . kaskas." cralaw virtua1aw library
Napahaling ang tingin ng balerinang huwad kay Mike.
Mistulang natipuhan, dahil sa harap niya’y nagtagal. Nag-
akmang mag-aalis ng pangitaas na kapirasong tela. Hindi
nakahinga si Mike, nanigas sa kanyang kinauupuan,
nanigas pati ang nasa gitna ng kanyang hita. Ang mga
mata niya’y namagnet sa kayamanang ngayo’y halos
isang pulgada lamang mula sa kanyang naglalaway na
bunganga. Naputol-putol ang kanyang hininga nang
kandungan ni ‘Red Raven’ ang kanyang kanang hita. Lalo
naghingalo siya nang kabayuhin ito ng dahan dahan . . .
Pabilis ng pabilis.’
The author further described Mike’s responses to the
dancer as follows (quoted in part):
chanrob1es virtual 1aw library
chanrob1es virtua1
. . . Nagsimulang lumaban na ng sabayan si Mike sa
dancer. Hindi nagpatalo ang ibong walang pakpak, inipit
ng husto ang hita ni Mike at pinag-udyukan ang kanyang
dibdib sa mukha nito.
"Kaskas mo pa, kaskas mo pa!"
Palpakan at halagpakan na tawanan ang tumambad sa
kanya ng biglang halikan siya nito sa labi at iniwang
bigla, upang kanyang muniin ang naudlot niyang
pagtikim ng karnal na nektar. Hindi niya maanto kung
siya ay nanalo o natalo sa nangyaring sagupaan ng libog.
Ang alam lang niya ay nanlata na siya."
After the show the group went home in a car with the
bokalista driving. A pedestrian happened to cross the
street and the driver deliberately hit him with these
words: jgc:chanrobles.com.ph
"Pare tingnan natin kung immortal itong baboy na ito.
He! He! He! He! Sabad ng sabog nilang
drayber/bokalista." cralaw virtua1aw library
The story ends (with their car about to hit a truck) in
these words: . . . "Pare . . . trak!!! Put . . .!!!!
Ang Magasing Pampanitikan, October, 1994 issue, was in
turn, given the cover title of "Libog at iba pang tula."
In his foreword which Jerome Gomez entitled "Foreplay",
Jerome wrote: "Alam ko, nakakagulat ang aming
pamagat." Jerome then proceeded to write about
previous reactions of readers to women-writers writing
about matters erotic and to gay literature. He justified
the Magazine’s erotic theme on the ground that many of
the poems passed on to the editors were about
"sekswalidad at iba’t ibang karanasan nito." Nakakagulat
ang tapang ng mga manunulat . . . tungkol sa maselang
usaping ito . . . at sa isang institusyon pang katulad ng
Miriam!"
Mr. Gomez quoted from a poem entitled "Linggo" written
by himself:chanrob1es virtual 1aw library
may mga palangganang nakatiwangwang —
mga putang biyak na sa gitna,
cralaw virtua1aw library ‘di na puwedeng paglabhan,
‘di na maaaring pagbabaran . . ." cralaw virtua1aw library
Gomez stated that the poems in the magazine are not
"garapal" and "sa mga tulang ito namin maipagtatanggol
ang katapangan (o pagka-sensasyonal) ng pamagat na
"Libog at iba pang Tula." He finished "Foreplay" with
these words: "Dahil para saan pa ang libog kung hindi
ilalabas?"
The cover title in question appears to have been taken
from a poem written by Relly Carpio of the same title.
The poem dealt on a woman and a man who met each
other, gazed at each other, went up close and
cralaw virtua1aw library "Naghalikan, Shockproof." The poem contained a
background drawing of a woman with her two mammary
and nipples exposed and with a man behind embracing
her with the woman in a pose of passion-filled mien. chanrob1es virtua1 1aw 1ibrary
Another poem entitled ‘Virgin Writes Erotic’ was about a
man having fantasies in his sleep. The last verse said:
"At zenith I pull it out and find myself alone in this
fantasy." Opposite the page where this poem appeared
was a drawing of a man asleep and dreaming of a naked
woman (apparently of his dreams) lying in bed on her
buttocks with her head up (as in a hospital bed with one
end rolled up). The woman’s right nipple can be seen
clearly. Her thighs were stretched up with her knees
akimbo on the bed.
In the next page (page 29) one finds a poem entitled
"Naisip ko Lang" by Belle Campanario. It was about a
young student who has a love-selection problem: ". . .
Kung sinong pipiliin: ang teacher kong praning, o ang
boyfriend kong bading." The word "praning" as the court
understands it, refers to a paranoid person; while the
word "bading" refers to a sward or "bakla" or "badidang."
This poem also had an illustration behind it: of a young
girl with large eyes and sloping hair cascading down her
curves and holding a peeled banana whose top the
illustrator shaded up with downward-slanting strokes. In
the poem, the girl wanted to eat banana topped by
peanut butter. In line with Jerome’s "Foreplay" and by
the way it was drawn that banana with peanut butter top
was meant more likely than not, to evoke a spiritedly
mundane, mental reaction from a young audience.
Another poem entitled "Malas ang Tatlo" by an unknown
author went like this: chanrob1es virtual 1aw library
‘Na picture mo na ba
no’ng magkatabi tayong dalawa
sa pantatluhang sofa —
ikaw, the legitimate asawa
at ako, biro mo, ang kerida?
tapos, tumabi siya, shit!
kumpleto na: chanrob1es virtual 1aw library
ikaw, ako at siya
kulang na lang, kamera." cralaw virtua1aw library
A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-
Rho broadsheet spoke of a fox (lobo) yearning for
"karneng sariwa, karneng bata, karneng may kalambutan
. . . isang bahid ng dugong dalaga, maamo’t malasa,
ipahid sa mga labing sakim sa romansa’ and ended with
‘hinog na para himukin bungang bibiyakin." 2
Following the publication of the paper and the magazine,
the members of the editorial board, 3 and Relly Carpio,
author of Libog, all students of Miriam College, received a
letter signed by Dr. Aleli Sevilla, Chair of the Miriam
College Discipline Committee. The Letter dated 4
November 1994 stated: chanrob1es virtual 1aw library
This is to inform you that the letters of complain filed
against you by members of the Miriam Community and a
concerned Ateneo grade five student have been
forwarded to the Discipline Committee for inquiry and
investigation. Please find enclosed complaints.
As expressed in their complaints you have violated
regulations in the student handbook specifically Section 2
letters B and R, pages 30 and 32, Section 4 (Major
offenses) letter j, page 36 letters m, n, and p, page 37
and no. 2 (minor offenses) letter a, page 37.
You are required to submit a written statement in answer
to the charge/s on or before the initial date of hearing to
be held on November 15, 1994, Tuesday, 1:00 in the
afternoon at the DSA Conference Room. 4 2. Daphne Cowper suspension up to (summer)

None of the students submitted their respective answers. March, 1995;

They instead requested Dr. Sevilla to transfer the case to
the Regional Office of the Department of Education, 3. Imelda Hilario suspension for two (2) weeks to
Culture and Sports (DECS) which under Rule XII of DECS
Order No. 94, Series of 1992, supposedly had jurisdiction expire on February 2, 1995;
over the case. 5
4. Deborah Ligon suspension up to May, 1995.
In a Letter dated 21 November 1994, Dr. Sevilla again
required the students to file their written answers. Miss Ligon is a 4th year student

In response, Atty. Ricardo Valmonte, lawyer for the and could graduate as summa
students, submitted a letter 6 to the Discipline
Committee reiterating his clients’ position that said cum laude;
Committee had no jurisdiction over them. According to
Atty. Valmonte, the Committee was "trying to impose 5. Elizabeth Valdezco suspension up to (summer)
discipline on [his clients] on account of their having
written articles and poems in their capacity as campus March, 1995;
journalists." Hence, he argued that "what applies is
Republic Act No. 7079 [The Campus Journalism Act] and 6. Camille Portugal graduation privileges withheld,
its implementing rules and regulations." He also
questioned the partiality of the members of said including diploma. She is an
Committee who allegedly "had already articulated their
position" against his clients.
Octoberian;
chanroblesvirtuallawlibrary

The Discipline Committee proceeded with its investigation

7. Joel Tan suspension for two (2) weeks to
ex parte. Thereafter, the Discipline Board, after a review
of the Discipline Committee’s report, imposed disciplinary
expire on February 2, 1995;
sanctions upon the students, thus: chanrob1es virtual 1aw library

8. Gerald Gary Renacido Expelled and given transfer

1. Jasper Briones Expulsion. Briones is the
credentials. He is a 2nd year
Editor-in-Chief of Chi-Rho and

a 4th year student; student. He wrote the fiction


story "Kaskas" ;
9. Relly Carpio Dismissed and given transfer
credentials. He is in 3rd year
and wrote the poem "Libog" ;
10. Jerome Gomez Dismissed and given transfer
. credentials. He is in 3rd year.
He wrote the foreword
"Foreplay" to the questioned
Anthology of Poems; and
11. Jose Mari Ramos Expelled and given transfer
papers. He is a 2nd year
student and art editor of Chi-
Rho. 7
The above students thus filed a petition for prohibition
and certiorari with preliminary injunction/restraining
order before the Regional Trial Court of Quezon City
questioning the jurisdiction of the Discipline Board of
Miriam College over them.
On 17 January 1995, the Regional Trial Court, Branch
CIII, presided by Judge Jaime N. Salazar, Jr., issued an
order denying the plaintiffs’ prayer for a Temporary
Restraining Order. It held:chanrob1es virtual 1aw library
There is nothing in the DECS Order No. 94, S. 1992
dated August 19, 1992 that excludes school
Administrators from exercising jurisdiction over cases of
the nature involved in the instant petition. R.A. 7079 also
does not state anything on the matter of jurisdiction. The
DECS undoubtedly cannot determine the extent of the
nature of jurisdiction of schools over disciplinary cases.
Moreover, as this Court reads that DECS Order No. 94, S.
of 1992, it merely prescribes for purposes of internal
administration which DECS officer or body shall hear
cases arising from R A. 7079 if and when brought to it for
resolution. The said order never mentioned that it has
exclusive jurisdiction over cases falling under R.A. 707. 8
The students thereafter filed a "Supplemental Petition
and Motion for Reconsideration." The College followed
with its Answer.
Subsequently, the RTC issued an Order dated 10
February 1995 granting the writ of preliminary
injunction.
ACCORDINGLY, so as not to render the issues raised
moot and academic, let a writ of preliminary injunction
issue enjoining the defendants, including the officers and
members of the Disciplinary Committee, the Disciplinary
Board, or any similar body and their agents, and the
officers and members of the Security Department,
Division, or Security Agency securing the premises and
campus of Miriam College Foundation, Inc. from: chanrob1es virtua1 1aw 1ibrary
1. Enforcing and/or implementing the expulsion or
dismissal resolutions or orders complained of against
herein plaintiffs (a) Jasper Briones; (b) Gerald Gary
Renacido; (c) Relly Carpio; (d) Jerome Gomez; and (e)
Jose Mari Ramos, but otherwise allowing the defendants
to impose lesser sanctions on aforementioned plaintiffs;
and
2. Disallowing, refusing, barring or in any way preventing
the herein plaintiffs (all eleven of them) from taking tests
or exams and entering the Miriam campus for such
purpose as extended to all students of Miriam College
Foundation, Inc.; neither should their respective course
or subject teachers or professors withhold their grades,
including final grades, if and when they meet the
requirements similarly prescribed for all other students,
this current 2nd Semester of 1994-95.
The sanctions imposed on the other plaintiffs, namely,
Deborah Ligon, Imelda Hilario, Elizabeth Valdezco,
Camille Portugal and Daphne Cowper, shall remain in
force and shall not be covered by this Injunction:
Provided, that Camille Portugal now a graduate, shall
have the right to receive her diploma, but defendants are
not hereby prevented from refusing her the privilege of
walking on the graduation stage so as to prevent any
likely public tumults.
The plaintiffs are required to post an injunction bond in
the sum of Four Thousand Pesos (P4,000.00) each.
SO ORDERED. 9
Both parties moved for a reconsideration of the above
order. In an Order dated 22 February 1995, the RTC
dismissed the petition, thus:chanrob1es virtual 1aw library
4. On the matter raised by both parties that it is the
DECS which has jurisdiction, inasmuch as both parties do
not want this court to assume jurisdiction here then this
court will not be more popish than the Pope and in fact is
glad that it will have one more case out of its docket.
ACCORDINGLY, the instant case is hereby DISMISSED
without prejudice to the parties going to another forum.
All orders heretofore issued here are hereby recalled and
set aside.
SO ORDERED. 10
The students, excluding Deborah Ligon, Imelda Hilario
and Daphne Cowper, sought relief in this Court through a
petition for certiorari and prohibition of preliminary
injunction/restraining order 11 questioning the Orders of
the RTC dated 10 and 24 February 1995.
On 15 March 1995, the Court resolved to refer the case
to the Court of Appeals (CA) for disposition. 12 On 19
May 1995, the CA issued a resolution stating: chanrob1es virtual 1aw library
The respondents are hereby required to file comment on
the instant petition and to show cause why no writ of
preliminary injunction should be issued, within ten (10)
days from notice hereof, and the petitioners may file
reply thereto within five (5) days from receipt of former’s
comment.
In order not to render ineffectual the instant petition, let
a Temporary Restraining Order be issued enjoining the
public respondents from enforcing letters of
dismissal/suspension dated January 19, 1995.
SO ORDERED. 13
In its Decision dated 26 September 1996, respondent
court granted the students’ petition. The CA declared the
RTC Order dated 22 February 1995, as well as the
students’ suspension and dismissal, void.
Hence, this petition by Miriam College.
We limit our decision to the resolution of the following
issues:chanrob1es virtual 1aw library
(1) The alleged moot character of the case.
(2) The jurisdiction of the trial court to entertain the
petition for certiorari filed by the students.
(3) The power of petitioner to suspend or dismiss
respondent students.
(4) The jurisdiction of petitioner over the complaints
against the students.
We do not tackle the alleged obscenity of the publication,
the propriety of the penalty imposed or the manner of
the imposition thereof. These issues, though touched
upon by the parties in the proceedings below, were not
fully ventilated therein.
I hand, is to preserve the status quo until the hearing of
Petitioner asserts the Court of Appeals found the case
moot thus: chanrob1es virtual 1aw library
While this petition may be considered moot and academic
since more than one year have passed since May 19,
1995 when this court issued a temporary restraining
order enjoining respondents from enforcing the dismissal
and suspension on petitioners . . . 14
Since courts do not adjudicate moot cases, petitioner
argues that the CA should not have proceeded with the
adjudication of the merits of the case.
We find that the case is not moot.
It may be noted that what the court issued in 19 May
1995 was a temporary restraining order, not a
preliminary injunction. The records do not show that the
CA ever issued a preliminary injunction.
Preliminary injunction is an order granted at any stage of
an action or proceeding prior to the judgment or final
order, requiring a party or a court, agency or a person to
perform to refrain from performing a particular act or
acts. 15 As an extraordinary remedy, injunction is
calculated to preserve or maintain the status quo of
things and is generally availed of to prevent actual or
threatened acts, until the merits of the case can be
heard. 16 A preliminary injunction persists until it is
dissolved or until the termination of the action without
the court issuing a final injunction.
The basic purpose of restraining order, on the other
the application for preliminary injunction. 17 Under the
former §5, Rule 58 of the Rules of Court, as amended by
§5, Batas Pambansa Blg. 224, a judge (or justice) may
issue a temporary restraining order with a limited life of
twenty days from date of issue. 18 If before the
expiration of the 20-day period the application for
preliminary injunction is denied, the temporary order
would thereby be deemed automatically vacated. If no
action is taken by the judge on the application for
preliminary injunction within the said 20 days, the
temporary restraining order would automatically expire
on the 20th day by the sheer force of law, no judicial
declaration to that effect being necessary. 19 In the
instant case, no such preliminary injunction was issued;
hence, the TRO earlier issued automatically expired
under the aforesaid provision of the Rules of Court. 20
This limitation as to the duration of the temporary
restraining order was the rule prevailing when the CA
issued its TRO dated 19 May 1995. 21 By that time
respondents Elizabeth Valdezco and Joel Tan had already
served their respective suspensions. The TRO was
applicable only to respondents Jasper Briones, Jerome
Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary
Renacido all of whom were dismissed, and respondent
Camille Portugal whose graduation privileges were
withheld. The TRO, however, lost its effectivity upon the
lapse of the twenty days. It can hardly be said that in
that short span of time, these students had already
graduated as to render the case moot. chanrob1es virtua1 law library
Either the CA was of the notion that its TRO was effective
throughout the pendency of the case or that what is
issued was a preliminary injunction. In either case, it was
error on the part of the CA to assume that its order
supposedly enjoining Miriam from enforcing the dismissal
and suspension was complied with. A case becomes moot
and academic when there is no more actual controversy
between the parties or no useful purpose can be served
in passing upon the merits. 22 To determine the moot
character of a question before it, the appellate court may
receive proof or take notice of facts appearing outside
the record. 23 In the absence of such proof or notice of
facts, the Court of Appeals should not have assumed that
its TRO was enforced, and that the case was rendered
moot by the mere lapse of time.
Indeed, private respondents in their Comment herein 24
deny that the case has become moot since Miriam
refused them readmission in violation of the TRO. This
fact is unwittingly conceded by Miriam itself when, to
counter this allegation by the students, it says that
private respondents never sought readmission after the
restraining order was issued. 25 In truth, Miriam relied
on legal technicalities to subvert the clear intent of said
order, which states: chanrob1es virtual 1aw library
In order not to render ineffectual the instant petition, let
a Temporary Restraining Order be issued enjoining the
public respondents from enforcing letters of
dismissal/suspension dated January 19, 1995.
Petitioner says that the above order is "absurd" since the
order "incorrectly directs public respondent, the Hon.
Jaime Salazar, presiding judge of the Regional Trial Court
of Quezon City not to dismiss or suspend the students."
26
We do not agree. Padua v. Robles 27 lays down the rules
in construing judgments. We find these rules to be
applicable to court orders as well: chanrob1es virtual 1aw library
[T]he sufficiency and efficacy of a judgment must be
tested by its substance rather than its form. In
construing a judgment, its legal effects including such
effects that necessarily follow because of legal
implications, rather than the language used, govern.
Also, its meaning, operation, and consequences must be
ascertained like any other written instrument. Thus, a
judgment rests on the intent of the court as gathered
from every part thereof, including the situation to which
it applies and attendant circumstances. (Emphasis
supplied.)
Tested by such standards, we find that the order was
indeed intended for private respondents (in the appellate
court) Miriam College, Et Al., and not public respondent
Judge. In dismissing the case, the trial judge recalled and
set aside all orders it had previously issued, including the
writ of preliminary injunction. In doing so, the trial court
allowed the dismissal and suspension of the students to
remain in force. Thus, it would indeed be absurd to
construe the order as being directed to the RTC.
Obviously, the TRO was intended for Miriam College.
True, respondent-students should have asked for a
clarification of the above order. They did not.
Nevertheless, if Miriam College found the order "absurd,"
then it should have sought a clarification itself so the
Court of Appeals could have cleared up any confusion. It
chose not to. Instead, it took advantage of the supposed
vagueness of the order and used the same to justify its
refusal to readmit the students.
As Miriam never readmitted the students, the CA’s ruling
that the case is moot has no basis. How then can Miriam
argue in good faith that the case had become moot when
it knew all along that the facts on which the purported
moot character of the case were based did not exist?
Obviously, Miriam is clutching to the CA’s wrongful
assumption that the TRO it issued was enforced to justify
the reversal of the CA’s decision.
Accordingly, we hold that the case is not moot, Miriam’s
pretensions to the contrary notwithstanding.
II
"To uphold and protect the freedom of the press even at
the campus level and to promote the development and
growth of campus journalism as a means of
strengthening ethical values, encouraging critical and
creative thinking, and developing moral character and
personal discipline of the Filipino youth," 28 Congress
enacted in 1991 Republic Act No. 7079. Entitled "AN ACT
PROVIDING FOR THE DEVELOPMENT AND PROMOTION
OF CAMPUS JOURNALISM AND FOR OTHER PURPOSES,"
29 the law contains provisions for the selection of the
editorial board 30 and publication adviser, 31 the funding
of the school publication, 32 and the grant of exemption
to donations used actually, directly and exclusively for
the promotion of campus journalism from donor’s or gift
tax. 33
Noteworthy are provisions clearly intended to provide
autonomy to the editorial board and its members. Thus,
the second paragraph of Section 4 states that" (o)nce the
publication is established, its editorial board shall freely
determine its editorial policies and-manage the
publication’s funds."cralaw virtua1aw library
Section 7, in particular, provides: chanrob1es virtual 1aw library
A member of the publication staff must maintain his or
her status as student in order to retain membership in
the publication staff. A student shall not be expelled or
suspended solely on the basis of articles he or she has
written, or on the basis of the performance of his or her
duties in the student publication.
Section 9 of the law mandates the DECS to "promulgate
the rules and regulations necessary for the effective
implementation of this Act." 34 Pursuant to said
authority, then DECS Secretary Armand Fabella, issued
DECS Order No. 94, Series of 1992, providing under Rule
XII that: chanrob1es virtual 1aw library
GENERAL PROVISIONS
SECTION 1. The Department of Education, Culture and
Sports (DECS) shall help ensure and facilitate the proper
carrying out of the Implementing Rules and Regulations
of Republic Act No. 7079. It shall also act on cases on
appeal brought before it.
The DECS regional office shall have the original
jurisdiction over cases as a result of the decisions,
actions and policies of the editorial board of a school
within its area of administrative responsibility. It shall
conduct investigations and hearings on the these cases
within fifteen (15) days after the completion of the
resolution of each case. (Emphasis supplied.)
The latter two provisions of law appear to be decisive of
the present case.
It may be recalled that after the Miriam Disciplinary
Board imposed disciplinary sanctions upon the students,
the latter filed a petition for certiorari and prohibition in
the Regional Trial Court raising, as grounds therefor,
that:chanrob1es virtual 1aw library
I
DEFENDANT’S DISCIPLINARY COMMITTEE AND
DISCIPLINARY BOARD OF DEFENDANT SCHOOL HAVE NO
JURISDICTION OVER THE CASE. 35
II
DEFENDANT SCHOOL’S DISCIPLINARY COMMITTEE AND
THE DISCIPLINARY BOARD DO NOT HAVE THE
QUALIFICATION OF AN IMPARTIAL AND NEUTRAL
ARBITER AND, THEREFORE THEIR TAKING COGNIZANCE
OF THE CASE AGAINST PLAINTIFFS WILL DENY THE
LATTER OF THEIR RIGHT TO DUE PROCESS. 36
Anent the first ground, the students theorized that under
Rule XII of the Rules and Regulations for the
Implementation of R.A. No. 7079, the DECS Regional
Office, and not the school, had jurisdiction over them.
The second ground, on the other hand, alleged lack of
impartiality of the Miriam Disciplinary Board, which would
thereby deprive them of due process. This contention, if
true, would constitute grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
the trial court. These were the same grounds invoked by
the students in their refusal to answer the charges
against them. The issues were thus limited to the
question of jurisdiction — a question purely legal in
nature and well within the competence and the
jurisdiction of the trial court, not the DECS Regional
Office. This is an exception to the doctrine of primary
jurisdiction. As the Court held in Phil. Global
Communications, Inc. v. Relova. 37
Absent such clarity as to the scope and coverage of its
franchise, a legal question arises which is more
appropriate for the judiciary than for an administrative
agency to resolve. The doctrine of primary jurisdiction
calls for application when there is such competence to act
on the part of an administrative body. Petitioner assumes
that such is the case. That is to beg the question. There
is merit, therefore, to the approach taken by private
respondents to seek judicial remedy as to whether or not
the legislative franchise could be so interpreted as to
enable the National Telecommunications Commission to
act on the matter. A jurisdictional question thus arises
and calls for an answer.chanrob1es virtua1 1aw 1ibrary
However, when Miriam College in its motion for
reconsideration contended that the DECS Regional Office,
not the RTC, had jurisdiction, the trial court, refusing to
"be more popish than the Pope," dismissed the case.
Indeed, the trial court could hardly contain its glee over
the fact that "it will have one more case out of its
docket." We remind the trial court that a court having
jurisdiction of a case has not only the right and the
power or authority, but also the duty, to exercise that
jurisdiction and to render a decision in a case properly
submitted to it. 38 Accordingly, the trial court should not
have dismissed the petition without settling the issues
presented before it.
III
Before we address the question of which between the
DECS Regional Office and Miriam College has jurisdiction
over the complaints against the students, we first delve
into the power of either to impose disciplinary sanctions
upon the students. Indeed, the resolution of the issue of
jurisdiction would be reduced to an academic exercise if
neither the DECS Regional Office nor Miriam College had
the power to impose sanctions upon the students.
Recall, for purposes of this discussion, that Section 7 of
the Campus Journalism Act prohibits the expulsion or
suspension of a student solely on the basis of articles he
or she has written.
A.
Section 5 (2), Article XIV of the Constitution guarantees
all institutions of higher learning academic freedom. This
institutional academic freedom includes the right of the
school or college to decide for itself, its aims and
objectives, and how best to attain them free from outside
coercion or interference save possibly when the
overriding public welfare calls for some restraint. 39 The
essential freedoms subsumed in the term "academic
freedom" encompasses the freedom to determine for
itself on academic grounds: chanrob1es virtual 1aw library
(1) Who may teach,
(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study. 40
The right of the school to discipline its students is at once
apparent in the third freedom, i.e., "how it shall be
taught." A school certainly cannot function in an
atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an
educational institution requires rules and regulations
necessary for the maintenance of an orderly educational
program and the creation of an educational environment
conducive to learning. Such rules and regulations are
equally necessary for the protection of the students,
faculty, and property. 41
Moreover, the school has an interest in teaching the
student discipline, a necessary, if not indispensable,
value in any field of learning. By instilling discipline, the
school teaches discipline. Accordingly, the right to
discipline the student likewise finds basis in the freedom
"what to teach." cralaw virtua1aw library
Incidentally, the school not only has the right but the
duty to develop discipline in its students. The
Constitution no less imposes such duty. chanrob1es virtua1 1aw 1ibrary
[All educational institutions] shall inculcate patriotism
and nationalism, foster love of humanity, respect for
human rights, appreciation of the role of national heroes
in the historical development of the country, teach the
rights and duties of citizenship, strengthen ethical and
spiritual values, develop moral character and personal
discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge, and
promote vocational efficiency. 42
In Angeles v. Sison, we also said that discipline was a
means for the school to carry out its responsibility to help
its students "grow and develop into mature, responsible,
effective and worthy citizens of the community." 43
Finally, nowhere in the above formulation is the right to
discipline more evident than in "who may be admitted to
study." If a school has the freedom to determine whom
to admit, logic dictates that it also has the right to
determine whom to exclude or expel, as well as upon
whom to impose lesser sanctions such as suspension and
the withholding of graduation privileges.
Thus, in Ateneo de Manila v. Capulong, 44 the Court
upheld the expulsion of students found guilty of hazing
by petitioner therein, holding that: chanrob1es virtual 1aw library
No one can be so myopic as to doubt that the immediate
reinstatement of respondent students who have been
investigated and found guilty by the Disciplinary Board to
have violated petitioner university’s disciplinary rules and
standards will certainly undermine the authority of the
administration of the school. This we would be most
loathe to do.
More importantly, it will seriously impair petitioner
university’s academic freedom which has been enshrined
in the 1935, 1973 and the present 1987 Constitution. 45
Tracing the development of academic freedom, the Court
continued: chanrob1es virtual 1aw library
Since Garcia v. Loyola School of Theology, we have
consistently upheld the salutary proposition that
admission to an institution of higher learning is
discretionary upon a school, the same being a privilege
on the part of the student rather than a right. While
under the Education Act of 1982, students have a right
"to freely choose their field of study, subject to existing
curricula and to continue their course therein up to
graduation," such right is subject, as all rights are, to the
established academic and disciplinary standards laid
down by the academic institution.
"For private schools have the right to establish
reasonable rules and regulations for the admission,
discipline and promotion of students. This right . . .
extends as well to parents . . . as parents under a social
and moral (if not legal) obligation, individually and
collectively, to assist and cooperate with the schools."
cralaw virtua1aw library
Such rules are "incident to the very object of
incorporation and indispensable to the successful
management of the college. The rules may include those
governing student discipline." Going a step further, the
establishment of the rules governing university-student
relations, particularly those pertaining to student
discipline, may be regarded as vital, not merely to the
smooth and efficient operation of the institution, but to
its very survival.
Within memory of the current generation is the eruption
of militancy in the academic groves as collectively, the
students demanded and plucked for themselves from the
panoply of academic freedom their own rights
encapsulized under the rubric of "right to education"
forgetting that, In Hohfeldian terms, they have the
concomitant duty, and that is, their duty to learn under
the rules laid down by the school.
. . . It must be borne in mind that universities are
established, not merely to develop the intellect and skills
of the studentry, but to inculcate lofty values, ideals and
attitudes; may, the development, or flowering if you will,
of the total man.
In essence, education must ultimately be religious — not
in the sense that the founders or charter members of the
institution are sectarian or profess a religious ideology.
Rather, a religious education, as the renowned
philosopher Alfred North Whitehead said, is ‘an education
which inculcates duty and reverence.’ It appears that the
particular brand of religious education offered by the
Ateneo de Manila University has been lost on the
respondent students.
Certainly, they do not deserve to claim such a venerable
institution as the Ateneo de Manila University as their
own a minute longer, for they may foreseeably cast a
malevolent influence on the students currently enrolled,
as well as those who come after them.
Quite applicable to this case is our pronouncement in Yap
Chin Fah v. Court of Appeals that: "The maintenance of a
morally conducive and orderly educational environment
will be seriously imperilled, if, under the circumstances of
this case, Grace Christian is forced to admit petitioner’s
children and to reintegrate them to the student body."
Thus, the decision of petitioner university to expel them
is but congruent with the gravity of their misdeeds. 46
B.
Section 4 (1), Article XIV of the Constitution recognizes
the State’s power to regulate educational institution: chanrob1es virtual 1aw library
The State recognizes the complementary roles of public
and private institutions in the educational system and
shall exercise reasonable supervision and regulation of all
educational institutions.
As may be gleaned from the above provision, such power
to regulate is subject to the requirement of
reasonableness. Moreover, the Constitution allows merely
the regulation and supervision of educational institutions,
not the deprivation of their rights.
C.
In several cases, this Court has upheld the right of the
students to free speech in school premises. In the
landmark case of Malabanan v. Ramento, 47 students of
the Gregorio Araneta University Foundation, believing
that the merger of the Institute of Animal Science with
the Institute of Agriculture would result in the increase in
their tuition, held a demonstration to protest the
proposed merger. The rally however was held at a place
other than that specified in the school permit and
continued longer than the time allowed. The protest,
moreover, disturbed the classes and caused the stoppage
of the work of non-academic personnel. For the illegal
assembly, the university suspended the students for one
year. In affirming the students’ rights to peaceable
assembly and free speech, the Court through Mr. Chief
Justice Enrique Fernando, echoed the ruling of the US
Supreme Court in Tinker v. Des Moines School District.
48
Petitioners invoke their rights to peaceable assembly and
free speech. They are entitled to do so. They enjoy like
the rest of the citizens the freedom to express their
views and communicate their thoughts to those disposed
to listen in gatherings such as was held in this case. They
do not, to borrow from the opinion of Justice Fortas in
Tinker v. Des Moines Community School District, ‘shed
their constitutional rights to freedom of speech or
expression at the schoolhouse gate.’ While, therefore,
the authority of educational institutions over the conduct
of students must be recognized, it cannot go so far as to
be violative of constitutional safeguards. On a more
specific level there is persuasive force to this Fortas
opinion. "The principal use to which the schools are
dedicated is to accommodate students during prescribed
hours for the purpose of certain types of activities.
Among those activities is personal intercommunication
among the students. This is not only inevitable part of
the educational process. A student’s rights, therefore, do
not embrace merely the classroom hours. When he is in
the cafeteria, or on the playing field, or on the campus
during the authorized hours, he may express his
opinions, even on controversial subjects like the conflict
in Vietnam, if he does so without ‘materially and
substantially interfer[ing] with the requirements of
appropriate discipline in the operation of the school’ and
without colliding with the rights of others. . . . But
conduct by the student, in class or out of it, which for
any reason — whether it stems from time, place, or type
of behavior — materially disrupts classwork or involves
substantial disorder or invasion of the rights of others is,
of course, not immunized by the constitutional guarantee
of freedom of speech. 49
The Malabanan ruling was followed in Villar v.
Technological Institute of the Philippines, 50 Arreza v.
Gregorio Araneta University Foundation, 51 and Non v.
Dames II. 52
The right of the students to free speech in school
premises, however, is not absolute. The right to free
speech must always be applied in light of the special
characteristics of the school environment. 53 Thus, while
we upheld the right of the students to free expression in
these cases, we did not rule out disciplinary action by the
school for "conduct by the student, in class or out of it,
which for any reason — whether it stems from time,
place, or type of behavior — which materially disrupts
classwork or involves substantial disorder or invasion of
the rights of others." 54 Thus, in Malabanan, we held: chanrob1es virtual 1aw library
6. Objection is made by private respondents to the tenor
of the speeches by the student leaders. That there would
be a vigorous presentation of view opposed to the
proposed merger of the Institute of Animal Science with
the Institute of Agriculture was to be expected. There
was no concealment of the fact that they were against
such a move as it confronted them with a serious
problem ("isang malaking suliranin.") They believed that
such a merger would result in the increase in tuition fees,
an additional headache for their parents ("isa na naman
sakit sa ulo ng ating mga magulang.") If in the course of
such demonstration, with an enthusiastic audience
goading them on, utterances extremely critical at times,
even vitriolic, were let loose, that is quite
understandable. Student leaders are hardly the timid,
different types. They are likely to be assertive and
dogmatic. They would be ineffective if during a rally they
speak in the guarded and judicious language of the
academe. At any rate, even a sympathetic audience is
not disposed to accord full credence to their fiery
exhortations. They take into account the excitement of
the occasion, the propensity of speakers to exaggerate,
the exuberance of youth. They may give the speakers
the benefit of their applause, but with the activity taking
place in the school premises and during the daytime, no
clear and present danger of public disorder is discernible.
This is without prejudice to the taking of disciplinary
action for conduct, which, to borrow from Tinker,
"materially disrupts classwork or involves substantial
disorder or invasion of the rights of others." 55
It is in the light of this standard that we read Section 7 of
the Campus Journalism Act. Provisions of law should be
construed in harmony with those of the Constitution; acts
of the legislature should be construed, wherever possible,
in a manner that would avoid their conflicting with the
fundamental law. 56 A statute should not be given a
broad construction if its validity can be saved by a
narrower one. 57 Thus, Section 7 should be read in a
manner as not to infringe upon the school’s right to
discipline its students. At the same time, however, we
should not construe said provision as to unduly restrict
the right of the students to free speech. Consistent with
jurisprudence, we read Section 7 of the Campus
Journalism Act to mean that the school cannot suspend
or expel a student solely on the basis of the articles he or
she has written, except when such article materially
disrupt class work or involve substantial disorder or
invasion of the rights of others. chanrob1es virtua1 1aw 1ibrary
IV.
From the foregoing, the answer to the question of who
has jurisdiction over the cases filed against respondent
students becomes self-evident. The power of the school
to investigate is an adjunct of its power to suspend or
expel. It is a necessary corollary to the enforcement of
rules and regulations and the maintenance of a safe and
orderly educational environment conducive to learning.
58 That power, like the power to suspend or expel, is an
inherent part of the academic freedom of institutions of
higher learning guaranteed by the Constitution. We
therefore rule that Miriam College has the authority to
hear and decide the cases filed against respondent
students.
WHEREFORE, the decision of the Court of Appeals is
REVERSED and SET ASIDE. Petitioner Miriam College is
ordered to READMIT private respondent Joel Tan whose
suspension has long lapsed.
SO ORDERED. chanrob1es virtual law library
Davide, Jr., C.J., Pardo and Ynares-Santiago, JJ., concur.
Puno, J., took no part; knows some parties.
 [ G.R. No. 223395, December 04, 2018 ]
RENATO V. PERALTA, PETITIONER, VS.
PHILIPPINE POSTAL CORPORATION (PHILPOST),
REPRESENTED BY MA. JOSEFINA MDELACRUZ IN
HER CAPACITY AS POSTMASTER GENERAL AND
CHIEF EXECUTIVE OFFICER, THE BOARD OF
DIRECTORS OF PHILPOST, REPRESENTED BY ITS
CHAIRMAN CESAR N. SARINO, RESPONDENTS.
DECISION
TIJAM, J.:
Assailed in this Petition for Review on Certiorari[1] under Rule 45 of the Rules
of Court is the Decision[2] dated July 24, 2015 and the Resolution[3] dated
March 8, 2016 of the Court of Appeals (CA) in CA-G.R. CV No. 103151.
The Antecedents
On May 10, 2014, respondent Philippine Postal Corporation (PhilPost)
issued a stamp commemorating Iglesia ni Cristo's (INC's) Centennial
Celebration. The design of the stamp showed a photo of INC founder, the
late Felix Y. Manalo (Manalo) with the designation on the left side containing
the words "Felix Y. Manalo, 1886-1963 First Executive Minister of Iglesia ni
Cristo", with the Central Temple of the religious group at the background. At
the right side of Manalo's photo is the INC's centennial logo which contained
a torch enclosed by a two concentric circles containing the words "IGLESIA
Nl CRISTO CENTENNIAL 1914-2014".[4]
On June 16, 2014, petitioner Renato V. Peralta (petitioner) filed a
complaint[5] for injunction with the Regional Trial Court (RTC), Br. 33 of
Manila, assailing the constitutionality of the printing, issuance and
distribution of the INC commemorative centennial stamps, allegedly paid for
by respondent PhilPost using public funds.
In his complaint, petitioner alleged that the printing and issuance of the INC
commemorative stamp involved disbursement of public funds, and violated.
Section 29(2) of Article VI[6] of the 1987 Constitution. He argued that
respondents' act of releasing the said stamps was unconstitutional because
it was tantamount to sponsorship of a religious activity; it violated the
separation of the Church and the State; and the non-establishment of
religion clause. Thus, petitioner prayed that respondents be restrained from
issuing and distributing the INC commemorative stamps.[7]
After service of summons to respondents PhilPost and its Board of Directors,
and a hearing on the petitioner's application for Temporary Restraining
Order (TRO), the RTC denied the same in its Order[8] dated June 23, 2014.
Respondents filed their Answer,[9] maintaining that no public funds were
disbursed in the printing of the INC commemorative stamps. They alleged
that there was a Memorandum of Agreement[10] (MOA) dated May 7, 2014
executed between PhilPost and INC, where it was provided that the costs of
printing will be borne by INC. They claimed that the proceeds of the sale of
the stamps will not redound to the sole benefit of INC.[11] The printing,
according to them, is part of PhilPost's philatelic products, which will promote
tourism in the country because it will attract people from all over the
world.[12] They maintained that any sectarian benefit to the INC is merely
incidental. As to petitioner's prayer for injunctive relief, respondents
contended that petitioner failed to demonstrate irreparable injury, and that he
cannot seek to restrain the printing and distribution of the stamps as these
were already printed prior to the filing of the complaint.
On July 25, 2014, the RTC issued an Order,[13] denying petitioner's
application for the issuance of a preliminary injunction and dismissing the
action. It ruled that it was not a taxpayer's suit and that it did not violate
Section 29 (2), Article VI of the 1987 Philippine Constitution.[14]
Petitioner appealed the RTC's decision with the CA, but the same was
denied in its July 24, 2015 decision. The CA ruled that although the action is
considered as a taxpayer's suit, the printing and issuance of the
commemorative stamp did not violate the Constitution.[15]
Aggrieved, petitioner filed a motion for reconsideration[16] of the CA's
decision, but the same was denied for lack of merit in the CA's March 8,
2016 Resolution.
Hence, the instant petition.
The Court's Ruling
Petitioner's arguments
Petitioner reiterates his argument that the CA failed to judiciously analyze
the design of the INC commemorative stamp as to conclude that the same is
"more historical than religious". He argues that the INC stamp, which
commemorates the 100th year founding of INC, particularly the INC Central
Temple and centennial logo, is purely religious. He explains that in Aglipay
vs. Ruiz,[17] the stamp deleted the grapevine with stalks of wheat in its
design, and merely contained the Philippine map and the location of the City
of Manila, with inscription,"Seat XXXIII International Eucharistic Congress,
February 3-7, 1937". For petitioner, what was emphasized in the stamp
subject of the case of Aglipay vs. Ruiz[18] was Manila, and not the Eucharistic
Congress. Meanwhile, in this case, the INC stamp purportedly emphasized
the INC as a religious institution.
Petitioner likewise cited the MOA between INC and respondent PhilPost to
emphasize the religious purpose of printing the stamp.
PhilPost's comment
For respondents' part, they maintained the constitutionality of the stamps
issued. First, they claimed that the printing, issuance and distribution of the
assailed INC commemorative stamps can neither be restrained nor enjoined,
because they have become fait accompli.[19]
Respondents also questioned petitioner's standing as a taxpayer. They point
out that there is no illegal disbursement of public funds, as the cost of
printing and issuance of the assailed commemorative stamps was
exclusively borne by INC for its consumption, and no public funds were
disbursed. The remaining pieces of stamps were used for sale by PhilPost to
its postal clients. It emphasized that the sales proceeds were not intended to
support the INC as a religious sect, but to promote the country as the chosen
venue of an international commemorative event, given INC's presence in
other countries. Respondents also pointed out that petitioner has not shown
that he will suffer a direct injury on account of the printing and issuance of
the INC commemorative stamps. Respondents also agreed with the findings
of the CA that there is intrinsic historical value in the design of the INC
stamp, considering that INC is a Filipino institution.[20]
Lastly, respondents contend that Section 29(2), Article VI of the 1987
Constitution does not apply, as it pertains to the Legislative Department.
Respondents alleged that the facts in the cases of Aglipay vs
Ruiz and Manosca vs. Court of Appeals[21] are different from the case at bar.
In Aglipay, the funds originated from the Insular Treasury - from funds not
otherwise appropriated. Meanwhile, Manosca pertained to an expropriation
case, hence, entailed appropriation of public funds. In this case, however,
respondents emphasized that PhilPost is a government owned and
controlled corporation (GOCC), which operates on its own capital. Thus,
when INC sought the printing of the assailed stamps, from its own funds and
for its primary use, the prohibition was not violated. It alleged that the printing
of the INC stamps was done as a fund-raising activity, and not to endorse or
benefit any religion.
Based from the aforesaid arguments of the parties, the issue of this case
centers on the constitutionality of the respondents' act in issuing and selling
postage stamps commemorating the INC's centennial celebration.
The petition lacks merit.
Procedural Aspect -
It is doctrinal[22] that the power of judicial review is subject to the following
limitations, viz: (1) there must be an actual case or controversy calling for the
exercise of judicial power; (2) the constitutionality of the questioned act must
be raised by the proper party, i.e., the person challenging the act must have
the standing to question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality must be the very lis
mota (the cause of the suit or action) of the case, i.e., the decision on the
constitutional or legal decision must be necessary to the determination of the
case itself.
Of these four, the first and second conditions will be the focus of Our
discussion.
Actual case or controversy -
Whether under the traditional or expanded setting, the Court's judicial review
power, pursuant to Section 1, Article VIII of the Constitution, is confined to
actual cases or controversies. We expounded on this requisite in SPARK, et.
al. v. Quezon City, et. al.,[23] thus:
An actual case or controversy is one which involves a conflict of legal rights,
an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. In other
words, there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence. According to recent
jurisprudence, in the Court's exercise of its expanded jurisdiction under the
1987 Constitution, this requirement is simplified by merely requiring a prima
facie showing of grave abuse of discretion in the assailed governmental act.
Corollary to the requirement of an actual case of controversy is the
requirement of ripeness. A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to himself as
a result of the challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of. [Citations omitted.]
Applying these principles, this Court finds that there exists an actual
justiciable controversy in this case.
Here, it is evident that PhilPost - under the express orders of then President
Benigno Aquino III (President Aquino III), through Proclamation No. 815
printed, issued and sold the INC commemorative stamps. PhilPost's act
gave rise to petitioner's injunction suit in which he made the following
allegations: (1) the printing of the INC commemorative stamps violated Sec.
29(2), Art. VI of the 1987 Constitution; and (2) the purpose of the stamp as
indicated in the MOA is "tantamount to sponsorship" of a religious activity,
violative of the non-establishment clause. These assertions are no longer
hypothetical in nature, but already amount to a legal claim susceptible for
adjudication.
Respondents claim that the Injunction suit filed by petitioner has become
moot since the acts sought to be enjoined - printing, issuance and
distribution of the INC commemorative stamps was fait accompli.[24] They
anchored their claim on Our ruling in Go v. Looyuko,[25] which essentially
states that when the events sought to be prevented by injunction have
already happened, nothing more could be enjoined.
We clarify.
While this Court agrees that the issue on the remedy of injunction availed of
by the petitioner may no longer be viable to enjoin PhilPost's acts,
considering that the act sought to be enjoined already transpired, this does
not necessarily mean that the question on the constitutionality of the said
acts would automatically be rendered academic.
It is precisely PhilPost's issuance, printing and sale of the INC
commemorative stamps that created a justiciable controversy since the said
acts allegedly violated Sec. 29(2), Art. VI of the 1987 Constitution. Had the
petitioner filed the injunction suit prior to the implementation of Proclamation
No. 815, any resolution by this Court on the question of PhilPost's printing of
the INC commemorative stamps would merely be an advisory opinion,
veritably binding no one, for it falls beyond the realm of judicial review.
Nonetheless, even if the case has indeed been rendered moot, this Court
can still pass upon the main issue. As We have pronounced in the case
of Prof David v. Pres. Macapagal-Arroyo,[26]
[T]he moot-and-academic principle is not a magical formula that
automatically dissuades courts from resolving cases, because they will
decide cases, otherwise moot and academic, if they find that: (a) there is a
grave violation of the Constitution; (b) the situation is of exceptional
character, and paramount public interest is involved; (c) the constitutional
issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public; or (d) a case is capable of repetition yet evading
review.[27]
This Court, in Mattel, Inc. v. Francisco, et. al.,[28] enumerated several cases
where the exceptions to the moot-and-academic principle were applied; thus:
xxx in Constantino v. Sandiganbayan (First Division),[29] Constantino, a
public officer, and his co-accused, Lindong, a private citizen, filed separate
appeals from their conviction by the Sandiganbayan for violation of Section
3(e) of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act.
While Constantino died during the pendency of his appeal, the Court still
ruled on the merits thereof, considering the exceptional character of the
appeals of Constantino and Lindong in relation to each other; that is, the two
petitions were so intertwined that the absolution of the deceased
Constantino was determinative of the absolution of his co-accused
Lindong.[30]
In Public Interest Center, Inc. v. Elma,[31] the petition sought to declare as
null and void the concurrent appointments of Magdangal B. Elma as
Chairman of the Presidential Commission on Good Government (PCGG)
and as Chief Presidential Legal Counsel (CPLC) for being contrary to
Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987
Constitution. While Elma ceased to hold the two offices during the pendency
of the case, the Court still ruled on the merits thereof, considering that the
question of whether the PCGG Chairman could concurrently hold the
position of CPLC was one capable of repetition.[32]
In David v. Arroyo,[33] seven petitions for certiorari and prohibition were filed
assailing the constitutionality of the declaration of a state of national
emergency by President Gloria Macapagal-Arroyo. While the declaration of a
state of national emergency was already lifted during the pendency of the
suits, this Court still resolved the merits of the petitions, considering that the
issues involved a grave violation of the Constitution and affected the public
interest. The Court also affirmed its duty to formulate guiding and controlling
constitutional precepts, doctrines or rules, and recognized that the contested
actions were capable of repetition.[34]
In Pimentel, Jr. v. Exec. Secretary Ermita,[35] the petition questioned the
constitutionality of President Gloria Macapagal-Arroyo 's appointment of
acting secretaries without the consent of the Commission on Appointments
while Congress was in session. While the President extended ad
interim appointments to her appointees immediately after the recess of
Congress, the Court still resolved the petition, noting that the question of the
constitutionality of the President's appointment of department secretaries in
acting capacities while Congress was in session was one capable of
repetition.[36]
In Atienza v. Villarosa,[37] the petitioners, as Governor and Vice Governor,
sought for clarification of the scope of the powers of the Governor and Vice-
Governor under the pertinent provisions of the Local Government Code of
1991. While the terms of office of the petitioners expired during the
pendency of the petition, the Court still resolved the issues presented to
formulate controlling principles to guide the bench, bar and the public.[38]
In Gayo v. Verceles,[39] the petition assailing the dismissal of the petition
for quo warranto filed by Gayo to declare void the proclamation of Verceles
as Mayor of the Municipality of Tubao, La Union during the May 14, 2001
elections, became moot upon the expiration on June 30, 2004 of the
contested term of office of Verceles. Nonetheless, the Court resolved the
petition since the question involving the one-year residency requirement for
those running for public office was one capable of repetition.[40]
In Albaña v. Commission on Elections,[41] the petitioners therein assailed the
annulment by the Commission on Elections of their proclamation as
municipal officers in the May 14, 2001 elections. When a new set of
municipal officers was elected and proclaimed after the May 10, 2004
elections, the petition was mooted but the Court resolved the issues raised in
the petition in order to prevent a repetition thereof and to enhance free,
orderly, and peaceful elections.[42]
Additionally, in Arvin R. Balag v. Senate of the Philippines,[43] We likewise
mentioned the following cases:
xxx in Republic v. Principalia Management and Personnel Consultants,
Inc.,[44] the controversy therein was whether the Regional Trial Court (RTC)
had jurisdiction over an injunction complaint filed against the Philippine
Overseas Employment Administration (POEA) regarding the cancellation of
the respondent's license. The respondent then argued that the case was
already moot and academic because it had continuously renewed its license
with the POEA. The Court ruled that although the case was moot and
academic, it could still pass upon the main issue for the guidance of both bar
and bench, and because the said issue was capable of repetition.
xxx in Regulus Development, Inc. v. Dela Cruz,[45] the issue therein was
moot and academic due to the redemption of the subject property by the
respondent. However, the Court ruled that it may still entertain the
jurisdictional issue of whether the RTC had equity jurisdiction in ordering the
levy of the respondent's property since it posed a situation capable of
repetition yet evading judicial review.
Based on these precedents, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petition, the
parties involved, on the application of the constitutional provisions allegedly
violated vis-a-vis the printing and issuance of the INC commemorative
stamps. There is no question that the issues being raised affect the public
interest, involving as they do, the alleged misuse of public funds and the
non-establishment clause which is one of the constitutional guarantees of
freedom of religion. This petition calls for a clarification of constitutional
principles. Perforce, there is a need to adjudicate the instant case.
Legal Standing -
In Mamba, et. al. v. Lara, et. al.,[46] this Court explained the legal standing of
a taxpayer in this wise:
A taxpayer is allowed to sue where there is a claim that public funds are
illegally disbursed, or that the public money is being deflected to any
improper purpose, or that there is wastage of public funds through the
enforcement of an invalid or unconstitutional law. A person suing as a
taxpayer, however, must show that the act complained of directly involves
the illegal disbursement of public funds derived from taxation. He must also
prove that he has sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct injury because of
the enforcement of the questioned statute or contract. xxx. [Citations
omitted.][47]
Here, petitioner made an allegation of PhilPost's misuse of public funds in
the printing of 1,200,000 INC commemorative stamps. Petitioner pointed out
that out of the 1,200,000 commemorative stamps printed, only 50,000 pieces
were shouldered by the INC based on its MOA with PhilPost. Petitioner,
thus, concluded that the production of the additional 1,150,000 stamps were
made possible only with the use of public funds and property. On this basis,
petitioner indeed, is invested with personality to institute the complaint for
injunction with the RTC. As correctly observed by the CA:
[Petitioner] Peralta contends that as the stamps covered by the MOA and
paid for by the INC pertain only to 50,000 pieces, public funds and property
were used by [respondent] Philpost in the printing and distribution of the
remaining 1,150,000 stamps. For purposes of determining capacity to sue as
a taxpayer, it is sufficient that [Petitioner] Peralta made allegations of such
nature.[48]
Substantive Aspect -
The non-establishment of religion clause is not equivalent to
indifference to religion
At the outset, this Court notes that the petition has argued, in length, about
how the appellate court apparently erred in failing to find the design of the
stamp unconstitutional. Citing Aglipay vs. Ruiz, petitioner insists that the
religious nature of the INC stamp makes the same unconstitutional, since it
violates the prohibition against the State from establishing a religion.
It is at once apparent that petitioner has summarily equated religion to
unconstitutionality. Certainly, examination of jurisprudence, both here and in
the United States, as well as the context over which this stamp has been
issued, inevitably leads this Court to agree with the CA, and uphold the
issuance of the INC commemorative stamp.
True, fundamental to the resolution of this case is the policy of the State on
the inviolability of the principle of separation of the church and the state.
Justice Isagani Cruz explained the rationale of this principle in this wise:
The rationale of the rule is summed up in the familiar saying, "Strong fences
make good neighbors." The idea is to delineate the boundaries between the
two institutions and, thus, avoid encroachments by one against the other
because of a misunderstanding of the limits of their respective exclusive
jurisdictions. The demarcation line calls on the entities to "render therefore
unto Caesar the things that are Caesar's and unto God the things that are
God's."[49]
The 1987 Constitution expressly provides for the following provisions, giving
life to the policy of separation of the Church and the State; thus:
ARTICLE II
DECLARATION OF PRINCIPLES AND STATE POLICIES PRINCIPLES
xxxx
Section 6. The separation of Church and State shall be inviolable.
xxxx
ARTICLE III
BILL OF RIGHTS
xxxx
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. No religious test shall be required for the exercise of civil
or political rights.
xxxx
ARTICLE VI
THE LEGISLATIVE DEPARTMENT
xxxx
Section 29.
(1) xxx
(2) No public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or of any
priest, preacher, minister, other religious teacher, or dignitary as such,
except when such priest, preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or government orphanage or
leprosarium.
xxxx
The Constitutional "wall" between the Church and the State, has been
jurisprudentially recognized to stem from the country's unfortunate collective
experience when the two institutions are commingled into one entity,
exercising both power and influence, oftentimes to the detriment of the
populace.
However, as apparent from the Constitution, the "wall" between the Church
and the State exists along with the recognition of freedom of religion. In fact,
review of jurisprudence would reveal that this Court has carefully weighed
this principles as to allow the broadest exercise of religious freedom without
infringing the non-establishment clause.
In upholding the issuance of the Thirty-third International Eucharistic
Congress commemorative stamp, this Court in Aglipay v. Ruiz[50] recognized
how religion is integrated in the Filipino way of life:
The more important question raised refers to the alleged violation of the
Constitution by the respondent in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress. It is
alleged that this action of the respondent is violative of the provisions of
section 13, subsection 3, Article VI, of the Constitution of the Philippines,
which provides as follows:
"No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, secretarian institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious teacher
or dignitary as such, except when such priest, preacher, minister, or dignitary
is assigned to the armed forces or to any penal institution, orphanage, or
leprosarium."
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background ofthis principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for ocassions might arise
when the estate (sic) will use the church, and the church the state, as a
weapon in the furtherance of their respective ends and aims. The Malolos
Constitution recognized this principle of separation of church and state in the
early stages of our constitutional development; it was inserted in the Treaty
of Paris between the United States and Spain of December 10, 1898,
reiterated in President McKinley's Instructions to the Philippine Commission,
reaffirmed in the Philippine Bill of 1902 and in the Autonomy Act of August
29, 1916, and finally embodied in the Constitution of the Philippines as the
supreme expression of the Filipino people. It is almost trite to say now that in
this country we enjoy both religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their oath to support
and defend the Constitution, bind themselves to recognize and respect the
constitutional guarantee of religious freedom, with its inherent limitations and
recognized implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not
inhibition of profound reverence for religion and is not denial of its
influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in so
far as it instills into the minds the purest principles of morality, its influence is
deeply felt and highly appreciated. When the Filipino people, in the preamble
of their Constitution, implored "the aid of Divine Providence, in order to
establish a government that shall embody their ideals, conserve and develop
the patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a
regime of justice, liberty and democracy," they thereby manifested their
intense religious nature and placed unfaltering reliance upon Him who
guides the destinies of men and nations. The elevating influence of
religion in human society is recognized here as elsewhere. In fact,
certain general concessions are indiscriminately accorded to religious
sects and denominations. Our Constitution and laws exempt from taxation
properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art.
VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance
appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code).
Sectarian aid is not prohibited when a priest, preacher, minister or other
religious teacher or dignitary as such is assigned to the armed forces or to
any penal institution, orphanage or leprosarium (sec. 13, subsec. 3, Art. VI,
Constitution of the Philippines). Optional religious instruction in the public
schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of
the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of
Holy Week, Thanksgiving Day, Christmas Day, and Sundays are made legal
holidays (sec. 29, Adm. Code) because of the secular idea that their
observance is conclusive to beneficial moral results. The law allows divorce
but punishes polygamy and bigamy; and certain crimes against religious
worship are considered crimes against the fundamental laws of the state
(see arts. 132 and 133, Revised Penal Code).[51] (Emphasis ours)
In Iglesia ni Cristo vs. Court of Appeals,[52] this Court upheld the MTRCB's
regulatory authority over religious programs but ultimately upheld the
contents of the INC's television program which attacked other religions, viz:
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 xxx and/or prohibit the xxx exhibition and/or television
broadcast of xxx television programs xxx." 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." 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:
Religious Profession and Worship
The right to religious profession and worship has a twofold 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.[53]
In Estrada vs. Escritor,[54] this Court encapsulated its policy towards these
kinds of disputes as "benevolent neutrality":
By adopting the above constitutional provisions on religion, the Filipinos
manifested their adherence to the benevolent neutrality approach in
interpreting the religion clauses, an approach that looks further than the
secular purposes of government action and examines the effect of these
actions on religious exercise. Benevolent neutrality recognizes the
religious nature of the Filipino people and the elevating influence of
religion in society; at the same time, it acknowledges that government
must pursue its secular goals. In pursuing these goals, however,
government might adopt laws or actions of general applicability which
inadvertently burden religious exercise. Benevolent neutrality gives room
for accommodation of these religious exercises as required by the Free
Exercise Clause. It allows these breaches in the wall of separation to
uphold religious liberty, which after all is the integral purpose of the religion
clauses. The case at bar involves this first type of accommodation where an
exemption is sought from a law of general applicability that inadvertently
burdens religious exercise.
Although our constitutional history and interpretation mandate benevolent
neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does
mean that the Court will not look with hostility or act indifferently
towards religious beliefs and practices and that it will strive to
accommodate them when it can within flexible constitutional limits; it
does mean that the Court will not simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the
orthodox view for this precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence of legislation granting
exemption from a law of general applicability, the Court can carve out an
exception when the religion clauses justify it. While the Court cannot adopt a
doctrinal formulation that can eliminate the difficult questions of judgment in
determining the degree of burden on religious practice or importance of the
state interest or the sufficiency of the means adopted by the state to pursue
its interest, the Court can set a doctrine on the ideal towards which religious
clause jurisprudence should be directed. We here lay down the doctrine that
in Philippine jurisdiction, we adopt the benevolent neutrality approach not
only because of its merits as discussed above, but more importantly,
because our constitutional history and interpretation indubitably show
that benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards
which this approach is directed is the protection of religious liberty "not only
for a minority, however small-not only for a majority, however large-but for
each of us" to the greatest extent possible within flexible constitutional
limits.[55] (Emphasis ours)
Verily, where the Court has been asked to determine whether there has
been an undue enchroachment of this Constitutionally forged "wall", this
Court has adopted a stance of "benevolent neutrality". Rightfully so, for this
incorporates the Constitutional principle of separation of the Church and the
State while recognizing the people's right to express their belief or non belief
of a Supreme Being. This Court, applying the view of benevolent neutrality,
declared that there was no violation of the non-establishment of religion
clause in the recent case of Re: Letter Of Tony Q. Valenciano.[56]
Even in the U. S., whose jurisprudence are of persuasive weight in this
jurisdiction, it can be gleaned that the religious nature of certain
governmental acts does not automatically result in striking them as
unconstitutional for violation of the non-establishment clause, particularly if
the act involves constitutionally protected form of exercise of religious
freedom.
The "Lemon test", which has been extensively applied by the U. S. Supreme
Court in issues involving the determination of non-establishment of religion
clause originated from the case of Lemon vs. Kurtzman.[57] In that case, the
Court used a three-pronged test to adjudge whether the assailed
governmental act violated the First Amendment, as follows:
1. The statute must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither advances nor
inhibits religion; and,
3. The statute must not foster "an excessive government entanglement with
religion."
In that case, the Court ruled that the state laws of Rhode Island and
Pennsylvania providing financial aid and resources to teachers of parochial
private schools, who will teach non-secular subjects to public schools is
unconstitutional. This was because the effect of the law was to require the
individual states to have continuous monitoring and surveillance of teacher
beneficiaries, in order to ensure that they would not espouse Catholic
teachings in their classes. Such scenario, according to the Supreme Court,
constitutes as an excessive entanglement of government in matters of
religion. In that case, however, the U. S. High Court admitted that drawing
the line between allowable and prohibited State acts delving on religion is
not a matter of drawing conclusions from well-defined formula, to wit:
Our prior holdings do not call for total separation between church and state;
total separation is not possible in an absolute sense. Some relationship
between government and religious organizations is inevitable. Zorach v.
Clauson, 343 U.S. 306,343 U.S. 312 (1952); Sherbert v. Verner, 374 U. S.
398, 374 U.S. 422 (1963) (HARLAN, J., dissenting). Fire inspections,
building and zoning regulations, and state requirements under compulsory
school attendance laws are examples of necessary and permissible
contacts. Indeed, under the statutory exemption before us in Walz, the State
had a continuing burden to ascertain that the exempt property was, in fact,
being used for religious worship. Judicial caveats against entanglement
must recognize that the line of separation, far from being a "wall," is a
blurred, indistinct, and variable barrier depending on all the
circumstances of a particular relationship.
This is not to suggest, however, that we are to engage in a legalistic minuet
in which precise rules and forms must govern. A true minuet is a matter of
pure form and style, the observance of which is itself the substantive
end. Here we examine the form of the relationship for the light that it casts
on the substance. (Emphasis ours)
Meanwhile, in upholding the use of a creche or Nativity scene in its annual
Christmas display by the City of Pawtucket, Rhode Island, the U. S.
Supreme Court, in Lynch vs. Donnelly,[58] explained that the separation of
the Church and the State should not be viewed to mean absolute
detachment of each other. The Court stated that:
This Court has explained that the purpose of the Establishment and Free
Exercise Clauses of the First Amendment is "to prevent, as far as possible,
the intrusion of either [the church or the state] into the precincts of the other."
xxxx
In every Establishment Clause case, we must reconcile the inescapable
tension between the objective of preventing unnecessary intrusion of
either the church or the state upon the other, and the reality that, as the
Court has so often noted, total separation of the two is not possible.
The Court has sometimes described the Religion Clauses as erecting a
"wall" between church and state, see, e.g., Everson v. Board of Education,
330 U.S. 1, 330 U.S. 18 (1947). The concept of a "wall" of separation is a
useful figure of speech probably deriving from views of Thomas Jefferson.
The metaphor has served as a reminder that the Establishment Clause
forbids an established church or anything approaching it But the metaphor
itself is not a wholly accurate description of the practical aspects of the
relationship that in fact exists between church and state.
No significant segment of our society, and no institution within it can
exist in a vacuum or in total or absolute isolation from all the other
parts, much less from government. "It has never been thought either
possible or desirable to enforce a regime of total separation. . . ." Committee
for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 413 U.S.
760 (1973). Nor does the Constitution require complete separation of church
and state; it affirmatively mandates accommodation, not merely tolerance, of
all religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson,
343 U.S. 306, 343 U.S. 314, 343 U.S. 315 (1952); Illinois ex rel. McCollum v.
Board of Education, 333 U.S. 203, 333 U.S., 211 (1948). Anything less
would require the "callous indifference" we have said was never intended by
the Establishment Clause." xxx (Emphasis Ours)
The U. S. Supreme Court then went on to state how its history and tradition
has allowed a healthy interaction between the State and religion, so long as
the State does not commit acts that are solely motivated by religious
considerations.
Another important lesson in Lynch was the Court's consideration of the
context within which the government has issued a legislation or pursued an
act. In that case, the Court found that the inclusion of the creche in the
annual Christmas display was merely a recognition of the historical origins of
the Christmas holiday.
Having in mind the above-stated rulings pertinent to the principle of non-
establishment of religion clause, We proceed to scrutinize the INC
commemorative stamp.
The printing of the INC commemorative stamp did not amount to a
violation of the non-establishment of religion clause
There is no quibbling that as to the 50,000 stamps ordered, printed and
issued to INC, the same did not violate the Constitutional prohibitions
separating State matters from religion. Per paragraphs 5 and 6 of the MOA
between PhilPost and INC provided that:
xxxx
5. Upon signing of this Agreement, INC shall pay m cash or by manager's
check an amount equivalent to fifty percent (50%) of the value of the
stamps, first day covers and other philatelic products ordered to be
purchased by INC, the fifty percent (50%) balance shall be paid upon
approval of the final stamp design/s by the PPC Stamps Committee.
6. Unless the total cost of the stamps and other related products ordered by
the INC is paid, PPC shall have the authority to hold the printing of the
stamps and other philatelic products. Only upon payment of the full
amount of the purchased stamps that the same shall be printed,
delivered to INC, circulated and/or sold to collectors and the mailing
public.
xxxx[59]
It is plain, that the costs for the printing and issuance of the aforesaid 50,000
stamps were all paid for by INC. Any perceived use of government property,
machines or otherwise, is de minimis and certainly do not amount to a
sponsorship of a specific religion.
Also, We see no violation of the Constitutional prohibition on establishment
of religion, insofar as the remaining 1,150,000 pieces of stamps printed and
distributed by PhilPost.
First, there is no law mandating anyone to avail of the INC commemorative
stamps, nor is there any law purporting to require anyone to adopt the INC's
teachings. Arguably, while then President Aquino issued Proclamation No.
815, s. 2014, authorizing the issuance of the INC commemorative stamp, the
same did not contain any legal mandate endorsing or requiring people to
conform to the INC's teachings.
The secular purpose behind the printing of the INC commemorative stamp is
obvious from the MOA between INC and Philpost:
MEMORANDUM OF AGREEMENT
xxxx
INC has requested PPC to issue, circulate and sell commemorative stamps
and other philatelic products to promote the Centennial of the Iglesia Ni
Cristo, and in honor of its First Executive Minister, Bro. Felix Y. Manalo;
(Emphasis ours)
xxxx[60]
The centennial celebration of the Iglesia ni Cristo, though arguably involves
a religious institution, has a secular aspect. In the old case of Garces, et al.
vs. Hon. Estenzo, etc., et al.,[61] the Court made a similar pronouncement as
to a controversy involving the purchase of a barangay council of a statue of
San Vicente Ferrer:
The wooden image was purchased in connection with the celebration
of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and
not for the purpose of favoring any religion nor interfering with
religious matters or the religious beliefs of the barrio residents. One of
the highlights of the fiesta was the mass. Consequently, the image of the
patron saint had to be placed in the church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a
patron saint for the barrio, then any activity intended to facilitate the worship
of the patron saint (such as the acquisition and display of his image) cannot
be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair.
Its celebration is an ingrained tradition in rural communities. The fiesta
relieves the monotony and drudgery of the lives of the masses.
The barangay council designated a layman as the custodian of the wooden
image in order to forestall any suspicion that it is favoring the Catholic
church. A more practical reason for that arrangement would be that the
image, if placed in a layman's custody, could easily be made available to any
family desiring to borrow the image in connection with prayers and
novenas.[62] (Emphasis ours)
The printing of the INC commemorative stamp is no different. It is simply an
acknowledgment of INC's existence for a hundred years. It does not
necessarily equate to the State sponsoring the INC.
As to the use of the government's machinery in printing and distribution of
the 1.2 million stamps, this Court does not find that the same amounted to
sponsorship of INC as a religion considering that the same is no different
from other stamps issued by PhilPost acknowledging persons and events of
significance to the country, such as those printed celebrating National
Artists, past Philippine Presidents, and events of organizations, religious or
not. We note that PhilPost has also issued stamps for the Catholic Church
such as those featuring Heritage Churches,[63] 15th International Eucharistic
Congress,[64] and Pope Francis.[65] In the past, the Bureau of Posts also
printed stamps celebrating 300 years of Islam in the 1980s. Likewise, our
review of the records does not disclose that PhilPost has exclusively or
primarily used its resources to benefit INC, to the prejudice of other religions.
Finally, other than this single transaction with INC, this Court did not find
PhilPost to have been unneccesarily involved in INC's affairs.
Based on the foregoing, this Court is not convinced that PhilPost has
actually used its resources to endorse, nor encourage Filipinos to join INC or
observe the latter's doctrines. On the contrary, this Court agrees with
respondents that the printing of the INC commemorative stamp was
endeavored merely as part of PhilPost's ordinary business.
In the same vein, We do not find that there was illegal disbursement of funds
under Section 29(2) of Article VI of the Constitution. The application of this
prohibition towards government acts was already clarified by the Court in Re:
Letter of Tony Q. Valenciano, Holding Of Religious Rituals At The Hall Of
Justice Building In Quezon City:[66]
Section 29 (2), Article VI of the 1987 Constitution provides, "No public
money or property shall be appropriated, applied, paid, or employed, directly
or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, or other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed
forces, or to any penal institution, or government orphanage or leprosarium."
The word "apply" means "to use or employ for a particular purpose."
"Appropriate" means "to prescribe a particular use for particular moneys or to
designate or destine a fund or property for a distinct use, or for the payment
of a particular demand."
Under the principle of noscitur a sociis, where a particular word or phrase is
ambiguous in itself or is equally susceptible of various meanings, its correct
construction may be made clear and specific by considering the company of
words in which it is found with or with which it is associated. This is because
a word or phrase in a statute is always used in association with other words
or phrases, and its meaning may, thus, be modified or restricted by the latter.
The particular words, clauses and phrases should not be studied as
detached and isolated expressions, but the whole and every part of the
statute must be considered in fixing the meaning of any of its parts and in
order to produce a harmonious whole. A statute must be so construed as to
harmonize and give effect to all its provisions whenever possible.
Thus, the words "pay" and "employ" should be understood to mean
that what is prohibited is the use of public money or property for the
sole purpose of benefiting or supporting any church. The prohibition
contemplates a scenario where the appropriation is primarily intended for the
furtherance of a particular church.
It has also been held that the aforecited constitutional provision "does not
inhibit the use of public property for religious purposes when the
religious character of such use is merely incidental to a temporary use
which is available indiscriminately to the public in general." Hence, a
public street may be used for a religious procession even as it is available for
a civic parade, in the same way that a public plaza is not barred to a
religious rally if it may also be used for a political assemblage.
In relation thereto, the phrase "directly or indirectly" refers to the manner of
appropriation of public money or property, not as to whether a particular act
involves a direct or a mere incidental benefit to any church. Otherwise, the
framers of the Constitution would have placed it before "use, benefit or
support" to describe the same. Even the exception to the same provision
bolsters this interpretation. The exception contemplates a situation wherein
public funds are paid to a priest, preacher, minister, or other religious
teacher, or dignitary because they rendered service in the armed forces, or
to any penal institution, or government orphanage or leprosarium. That a
priest belongs to a particular church and the latter may have benefited from
the money he received is of no moment, for the purpose of the payment of
public funds is merely to compensate the priest for services rendered and for
which other persons, who will perform the same services will also be
compensated in the same manner.
Ut magis valeat quam pereat. The Constitution is to be interpreted as a
whole. As such, the foregoing interpretation finds support in the
Establishment Clause, which is as clear as daylight in stating that what is
proscribed is the passage of any law which tends to establish a religion, not
merely to accommodate the free exercise thereof.[67]
Indeed, what is prohibited is the State using its resources to solely benefit
one religion. As stated above, the records do not show that the State has
been using the resources and manpower of PhilPost for INC's sole
advantage. On the contrary, the stamps printed and issued by PhilPost, as
seen through its website, feature various entities and organizations, other
than religious sects.
The design of the INC commemorative stamp is merely an
acknowledgment of the historical and cultural contribution of INC to
the Philippine society
Adopting the stance of benevolent neutrality, this Court deems the design of
the INC commemorative stamp constitutionally permissible. As correctly held
by the CA, there is an intrinsic historical value in the fact that Felix Y Manalo
is a Filipino and that the INC is a Filipino institution. It explained, thus:
xxx Both matters, "culture" and "national development," are secular in
character. Further, it cannot be denied that the part of the late Felix Y.
Manalo's cultural and historical contribution is his founding of the INC. This
circumstance, however, does not immediately put it in a religious light if it is
only the historical fact of establishment which is being mentioned, i.e.,
adding nothing more and without regard to its doctrine and teachings.
After arguing that the INC does not contribute to national development
because it does not pay taxes, (petitioner) Peralta now wants this Court to
enumerate INC's contributions to national development. This matter has
already been determined by the President of the Philippines, Congress, and
the National Historical Commission. It is not for this Court to question the
wisdom of these executive and legislative issuances nor supplant the same.
The task of this Court is to resolve whether the printing of the stamps is
constitutional in light of these executive and legislative determinations.
To reiterate, in the same manner that public property is allowed to be used
temporarily by different religions like roads or parks, the philatelic services
and products offered by (respondent) PhilPost for valuable consideration,
can be availed of not only by the INC but by other people or organizations as
well. For the above-stated reasons, this Court maintains its finding that the
printing and issuance of the INC Centennial stamps did not contravene
Section 29 (2), Article VI of the 1987 Constitution. Besides, (petitioner's)
cause of action, which is injunction, necessarily fails as there is nothing more
to restrain or enjoin.[68]
Thus, this Court sees no religious overtones surrounding the
commemorative stamps, as insisted upon by the petitioner.
In the case of Aglipay,[69] the issuance and sale of postage stamps
commemorating the Thirty-third International Eucharistic Congress was
assailed on the ground that it violated the constitutional prohibition against
the appropriation of public money or property for the benefit of any church. In
ruling that there was no such violation, the Court, through Justice Jose P.
Laurel, held that:
xxx It is obvious that while the issuance and sale of the stamps in question
may be said to be inseparably linked with an event of a religious character,
the resulting propaganda, if any, received by the Roman Catholic Church,
was not the aim and purpose of the Government. We are of the opinion that derived from the sale to INC and of the excess to the postal clients were not
the Government should not be embarrassed in its activities simply because given to INC, but went to the coffers of PhilPost.[72]
of incidental results, more or less religious in character, if the purpose had in All told, therefore, the Court finds no reason or basis to grant the petition. In
view is one which could legitimately be undertaken by appropriate refusing to declare unconstitutional the INC's commemorative stamp, this
legislation. The main purpose should not be frustrated by its Court is merely applying jurisprudentially sanctioned policy of benevolent
subordination to mere incidental results not contemplated. (Vide neutrality. To end, it bears to emphasize that the Constitution establishes
Bradfield vs. Roberts, 175 U.S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., separation of the Church and the State, and not separation of religion and
168.).[Emphasis Supplied.] state.[73]
Indeed, the design depicted in the INC commemorative stamp is merely a
recognition of the continuous existence of a group that is strictly Filipino. As WHEREFORE, We DENY the petition. We AFFIRM the July 24, 2015
compared to major religious groups established in the country, Felix Y. Decision, as well as the March 8, 2016 Resolution, of the Court of Appeals,
Manalo, and the INC, are not plain religious symbols, but also a in CA-G.R. CV No. 103151.
representation of a group that is distinctly unique to the Philippines. To the
mind of this Court, the use of the facade of the Church and the image of SO ORDERED.
Felix Y. Manalo is nothing more than an acknowledgment of a historical
milestone. It does not endorse, establish or disparage other religious groups Bersamin, C. J., Carpio, Peralta, Del Castillo, Perlas-Bernabe, Jardeleza,
and even non-believers, especially considering the fact that PhilPost also Caguioa, A. Reyes, Jr., Gesmundo, J. Reyes, Jr., and Hernando, JJ.,
print stamps with symbols which can arguably be connected to religion. In concur.
the case of Manosca vs. Court of Appeals,[70] this Court has already Leonen, J., See Dissenting Opinion.
recognized Manalo's contribution to the Filipino society: Carandang, J., on leave.
Petitioners ask: But "(w)hat is the so-called unusual interest that the
expropriation of (Felix Manalo's) birthplace become so vital as to be a public
use appropriate for the exercise of the power of eminent domain" when only
members of the Iglesia ni Cristo would benefit? This attempt to give some
religious perspective to the case deserves little consideration, for what
should be significant is the principal objective of, not the casual
consequences that might follow from, the exercise of the power. The
purpose in setting up the marker is essentially to recognize the distinctive
contribution of the late Felix Manalo to the culture of the Philippines,
rather than to commemorate his founding and leadership of the Iglesia
ni Cristo. The practical reality that greater benefit may be derived by
members of the Iglesia ni Cristo than by most others could well be true but
such a peculiar advantage still remains to be merely incidental and
secondary in nature. Indeed, that only a few would actually benefit from the
expropriation of property does not necessarily diminish the essence and
character of public use. (Emphasis ours)
To debunk petitioner's claim that Section 29, Article VI of the 1987
Constitution[71] was violated, We agree with PhilPost's view that:
xxx the printing and issuance of the assailed commemorative stamps were
not inspired by any sectarian denomination. The stamps were neither for the
benefit of INC, nor money derived from their sale inured to its benefit. xxx the
stamps delivered to INC were not free of charge and whatever income
G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair,
DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter
much. That would be a mere shadow of freedom. The test of its
substance is the right to differ as to things that touch the heart of
the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom
to choose is that others may make different choices – choices we
would not make for ourselves, choices we may disapprove of,
even choices that may shock or offend or anger us. However,
choices are not to be legally prohibited merely because they are
different, and the right to disagree and debate about important
questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition of,
and respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep
disagreements about the definitions and demands of morality. In
many cases, where moral convictions are concerned, harmony
among those theoretically opposed is an insurmountable goal.
Yet herein lies the paradox – philosophical justifications about
what is moral are indispensable and yet at the same time
powerless to create agreement. This Court recognizes, however,
that practical solutions are preferable to ideological stalemates;
accommodation is better than intransigence; reason more worthy
than rhetoric. This will allow persons of diverse viewpoints to live
together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of
Court, with an application for a writ of preliminary mandatory
injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against
the Resolutions of the Commission on Elections (COMELEC)
dated November 11, 20092 (the First Assailed Resolution) and
December 16, 20093 (the Second Assailed Resolution) in SPP
No. 09-228 (PL) (collectively, the Assailed Resolutions). The case
has its roots in the COMELEC’s refusal to accredit Ang Ladlad as
a party-list organization under Republic Act (RA) No. 7941,
otherwise known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who
identify themselves as lesbians, gays, bisexuals, or trans-
gendered individuals (LGBTs). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006.
The application for accreditation was denied on the ground that
the organization had no substantial membership base. On August
17, 2009, Ang Ladlad again filed a Petition5 for registration with
the COMELEC.
Before the COMELEC, petitioner argued that the LGBT
community is a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and
gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal
attitudes, LGBTs are constrained to hide their sexual orientation;
and that Ang Ladlad complied with the 8-point guidelines
enunciated by this Court in Ang Bagong Bayani-OFW Labor Party
v. Commission on Elections.6 Ang Ladlad laid out its national
membership base consisting of individual members and
organizational supporters, and outlined its platform of
governance.7
On November 11, 2009, after admitting the petitioner’s evidence,
the COMELEC (Second Division) dismissed the Petition on moral
grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner
defines the Filipino Lesbian, Gay, Bisexual and Transgender
(LGBT) Community, thus:
x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and
gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional,
affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same
gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that
petitioner tolerates immorality which offends religious beliefs. In
Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even
their women did change the natural use into that which is against
nature: And likewise also the men, leaving the natural use of the
woman, burned in their lust one toward another; men with men
working that which is unseemly, and receiving in themselves that
recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are
indeed a people transgressing beyond bounds." (7.81) "And we
rained down on them a shower (of brimstone): Then see what
was the end of those who indulged in sin and crime!" (7:84) "He
said: "O my Lord! Help Thou me against people who do mischief"
(29:30).
As correctly pointed out by the Law Department in its Comment
dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as
indicated in the Petition’s par. 6F: ‘Consensual partnerships or
relationships by gays and lesbians who are already of age’. It is
further indicated in par. 24 of the Petition which waves for the
record: ‘In 2007, Men Having Sex with Men or MSMs in the
Philippines were estimated as 670,000 (Genesis 19 is the history
of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the
Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which
defines nuisance as ‘Any act, omission, establishment, business,
condition of property, or anything else which x x x (3) shocks,
defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The
contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order
or public policy. Art 1409 of the Civil Code provides that
‘Contracts whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy’ are
inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the
Revised Penal Code, as amended, penalizes ‘Immoral doctrines,
obscene publications and exhibitions and indecent shows’ as
follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions,
and indecent shows. — The penalty of prision mayor or a fine
ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines
openly contrary to public morals;
2. (a) The authors of obscene literature, published with
their knowledge in any form; the editors publishing such
literature; and the owners/operators of the establishment
selling the same;
(b) Those who, in theaters, fairs, cinematographs
or any other place, exhibit indecent or immoral
plays, scenes, acts or shows, it being understood
that the obscene literature or indecent or immoral
plays, scenes, acts or shows, whether live or in
film, which are prescribed by virtue hereof, shall
include those which: (1) glorify criminals or
condone crimes; (2) serve no other purpose but to
satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4)
tend to abet traffic in and use of prohibited drugs;
and (5) are contrary to law, public order, morals,
good customs, established policies, lawful orders,
decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to
morals.
Petitioner should likewise be denied accreditation not only for
advocating immoral doctrines but likewise for not being truthful
when it said that it "or any of its nominees/party-list
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will
be exposing our youth to an environment that does not conform
to the teachings of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article that "older
practicing homosexuals are a threat to the youth." As an agency
of the government, ours too is the State’s avowed duty under
Section 13, Article II of the Constitution to protect our youth from
moral and spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners
voted to overturn the First Assailed Resolution (Commissioners
Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando
Velasco), while three commissioners voted to deny Ang
Ladlad’s Motion for Reconsideration (Commissioners Nicodemo
T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The
COMELEC Chairman, breaking the tie and speaking for the
majority in his Separate Opinion, upheld the First Assailed
Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the
party-list system. Even assuming that it has properly proven its
under-representation and marginalization, it cannot be said that
Ladlad’s expressed sexual orientations per se would benefit the
nation as a whole.
Section 2 of the party-list law unequivocally states that the
purpose of the party-list system of electing congressional
representatives is to enable Filipino citizens belonging to
marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability
of an organization to represent its constituencies, then all
representative organizations would have found themselves into
the party-list race. But that is not the intention of the framers of
the law. The party-list system is not a tool to advocate tolerance
and acceptance of misunderstood persons or groups of persons.
Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also
the nation’s – only that their interests have not been brought to
the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify
that having mixed sexual orientations and transgender identities
is beneficial to the nation, its application for accreditation under
the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades
Philippine jurisprudence, courts do not recognize lesbians, gays,
homosexuals, and bisexuals (LGBT) as a "special class" of
individuals. x x x Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental
right, and that "nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal
equality of homosexual relations," as in the case of race or
religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance
of LGBT’s is elevated, there can be no denying that Ladlad
constituencies are still males and females, and they will remain
either male or female protected by the same Bill of Rights that
applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian
or Muslim religious practices. Neither is there any attempt to any
particular religious group’s moral rules on Ladlad. Rather, what
are being adopted as moral parameters and precepts are
generally accepted public morals. They are possibly religious-
based, but as a society, the Philippines cannot ignore its more
than 500 years of Muslim and Christian upbringing, such that
some moral precepts espoused by said religions have sipped [sic]
into society and these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of
the law of the land. Article 201 of the Revised Penal Code
imposes the penalty of prision mayor upon "Those who shall
publicly expound or proclaim doctrines openly contrary to public
morals." It penalizes "immoral doctrines, obscene publications
and exhibition and indecent shows." "Ang Ladlad" apparently falls
under these legal provisions. This is clear from its Petition’s
paragraph 6F: "Consensual partnerships or relationships by gays
and lesbians who are already of age’ It is further indicated in par.
24 of the Petition which waves for the record: ‘In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated
as 670,000. Moreoever, Article 694 of the Civil Code defines
"nuisance" as any act, omission x x x or anything else x x x which
shocks, defies or disregards decency or morality x x x." These are
all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that
the Court annul the Assailed Resolutions and direct the
COMELEC to grant Ang Ladlad’s application for
accreditation. Ang Ladlad also sought the issuance ex parte of a
preliminary mandatory injunction against the COMELEC, which
had previously announced that it would begin printing the final
ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor
General (OSG) to file its Comment on behalf of COMELEC not
later than 12:00 noon of January 11, 2010.11 Instead of filing a
Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to
Comment.12 Somewhat surprisingly, the OSG later filed a
Comment in support of petitioner’s application.13 Thus, in order to
give COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment.14 The COMELEC, through its
Law Department, filed its Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a
temporary restraining order on January 12, 2010, effective
immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing
the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights
(CHR) filed a Motion to Intervene or to Appear as Amicus Curiae,
attaching thereto its Comment-in-Intervention.17 The CHR opined
that the denial of Ang Ladlad’s petition on moral grounds violated
the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International
Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
Intervene18 which motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it
justified the exclusion by using religious dogma, violated the
constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened
its constitutional rights to privacy, freedom of speech and
assembly, and equal protection of laws, as well as constituted
violations of the Philippines’ international obligations against
discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that
the COMELEC erred in denying petitioner’s application for
registration since there was no basis for COMELEC’s allegations
of immorality. It also opined that LGBTs have their own special
interests and concerns which should have been recognized by
the COMELEC as a separate classification. However, insofar as
the purported violations of petitioner’s freedom of speech,
expression, and assembly were concerned, the OSG maintained
that there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not
have a concrete and genuine national political agenda to benefit
the nation and that the petition was validly dismissed on moral
grounds. It also argued for the first time that the LGBT sector is
not among the sectors enumerated by the Constitution and RA
7941, and that petitioner made untruthful statements in its petition
when it alleged its national existence contrary to actual
verification reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and
Republic Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration
on the ground that the LGBT sector is neither enumerated in the
Constitution and RA 7941, nor is it associated with or related to
any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong petitioner alleged that the LGBT community in the Philippines was
Bayani stands for the proposition that only those sectors estimated to constitute at least 670,000 persons; that it had
specifically enumerated in the law or related to said sectors 16,100 affiliates and members around the country, and 4,044
(labor, peasant, fisherfolk, urban poor, indigenous cultural members in its electronic discussion group.22 Ang Ladlad also
communities, elderly, handicapped, women, youth, veterans, represented itself to be "a national LGBT umbrella organization
overseas workers, and professionals) may be registered under with affiliates around the Philippines composed of the following
the party-list system. As we explicitly ruled in Ang Bagong LGBT networks:"
Bayani-OFW Labor Party v. Commission on Elections,20 "the
enumeration of marginalized and under-represented sectors is § Abra Gay Association
not exclusive". The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization § Aklan Butterfly Brigade (ABB) – Aklan
complies with the requirements of the Constitution and RA 7941.
§ Albay Gay Association
Respondent also argues that Ang Ladlad made untruthful
statements in its petition when it alleged that it had nationwide
§ Arts Center of Cabanatuan City – Nueva Ecija
existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it
was shown that "save for a few isolated places in the country, § Boys Legion – Metro Manila
petitioner does not exist in almost all provinces in the country."21
§ Cagayan de Oro People Like Us (CDO PLUS)
This argument that "petitioner made untruthful statements in its
petition when it alleged its national existence" is a new one; § Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
previously, the COMELEC claimed that petitioner was "not being
truthful when it said that it or any of its nominees/party-list § Cebu Pride – Cebu City
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections." Nowhere was this § Circle of Friends
ground for denial of petitioner’s accreditation mentioned or even
alluded to in the Assailed Resolutions. This, in itself, is quite § Dipolog Gay Association – Zamboanga del Norte
curious, considering that the reports of petitioner’s alleged non-
existence were already available to the COMELEC prior to the § Gay, Bisexual, & Transgender Youth Association
issuance of the First Assailed Resolution. At best, this is irregular
(GABAY)
procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to
procedural due process. § Gay and Lesbian Activists Network for Gender Equality
(GALANG) – Metro Manila
Nonetheless, we find that there has been no misrepresentation. A
cursory perusal of Ang Ladlad’s initial petition shows that it never § Gay Men’s Support Group (GMSG) – Metro Manila
claimed to exist in each province of the Philippines. Rather,
§ Gay United for Peace and Solidarity (GUPS) – Lanao
del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines
(STRAP) – Metro Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG
LADLAD LGBT or LADLAD LGBT, it is no surprise that they
found that petitioner had no presence in any of these regions. In
fact, if COMELEC’s findings are to be believed, petitioner does
not even exist in Quezon City, which is registered as Ang
Ladlad’s principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently
demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELEC’s moral objection
and the belated allegation of non-existence, nowhere in the
records has the respondent ever found/ruled that Ang Ladlad is
not qualified to register as a party-list organization under any of
the requisites under RA 7941 or the guidelines in Ang Bagong
Bayani. The difference, COMELEC claims, lies in Ang
Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition
for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law
shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in
religious matters."24 Clearly, "governmental reliance on religious
justification is inconsistent with this policy of neutrality."25 We thus
find that it was grave violation of the non-establishment clause for
the COMELEC to utilize the Bible and the Koran to justify the
exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the
Assailed Resolutions should depend, instead, on whether the
COMELEC is able to advance some justification for its rulings
beyond mere conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in ways that have
primarily secular effects. As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily
secular, not religious as the dissent of Mr. Justice Carpio holds.
"Religious teachings as expressed in public debate may influence
the civil public order but public moral disputes may be resolved
only on grounds articulable in secular terms." Otherwise, if
government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a
religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief
and thereby also tacitly disapprove contrary religious or non-
religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are
disapproved are second-class citizens. 1avvphi1
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must
have a secular purpose. That is, the government proscribes this
conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence
on those engaged in public deliberations over what actions would
be considered a moral disapprobation punishable by law. After
all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on
them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing
earth with heaven. Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must
have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. x x x
Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine
constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the
same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for
Registration
Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it
has long been transplanted into generally accepted public morals.
The COMELEC argues:
Petitioner’s accreditation was denied not necessarily because
their group consists of LGBTs but because of the danger it poses
to the people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong
in having sexual relations with individuals of the same gender is a
bad example. It will bring down the standard of morals we cherish
in our civilized society. Any society without a set of moral
precepts is in danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual
conduct, and perhaps homosexuals themselves, have borne the
brunt of societal disapproval. It is not difficult to imagine the
reasons behind this censure – religious beliefs, convictions about
the preservation of marriage, family, and procreation, even dislike
or distrust of homosexuals themselves and their perceived
lifestyle. Nonetheless, we recall that the Philippines has not seen
fit to criminalize homosexual conduct. Evidently, therefore, these
"generally accepted public morals" have not been convincingly
transplanted into the realm of law.29
The Assailed Resolutions have not identified any specific overt
immoral act performed by Ang Ladlad. Even the OSG agrees that
"there should have been a finding by the COMELEC that the
group’s members have committed or are committing immoral
acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same
gender, of a different gender, or more than one gender, but mere
attraction does not translate to immoral acts. There is a great
divide between thought and action. Reduction ad absurdum. If
immoral thoughts could be penalized, COMELEC would have its
hands full of disqualification cases against both the "straights"
and the gays." Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to
be prevented, or why special protection is required for the youth.
Neither has the COMELEC condescended to justify its position
that petitioner’s admission into the party-list system would be so
harmful as to irreparably damage the moral fabric of society. We,
of course, do not suggest that the state is wholly without authority
to regulate matters concerning morality, sexuality, and sexual
relations, and we recognize that the government will and should
continue to restrict behavior considered detrimental to society.
Nonetheless, we cannot countenance advocates who,
undoubtedly with the loftiest of intentions, situate morality on one
end of an argument or another, without bothering to go through
the rigors of legal reasoning and explanation. In this, the notion of
morality is robbed of all value. Clearly then, the bare invocation of
morality will not remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of
our penal and civil laws flimsy, at best; disingenuous, at worst.
Article 694 of the Civil Code defines a nuisance as "any act,
omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality," the
remedies for which are a prosecution under the Revised Penal
Code or any local ordinance, a civil action, or abatement without
judicial proceedings.32 A violation of Article 201 of the Revised
Penal Code, on the other hand, requires proof beyond reasonable
doubt to support a criminal conviction. It hardly needs to be
emphasized that mere allegation of violation of laws is not proof,
and a mere blanket invocation of public morals cannot replace the
institution of civil or criminal proceedings and a judicial
determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a
sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The
denial of Ang Ladlad’s registration on purely moral grounds
amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public
interest. Respondent’s blanket justifications give rise to the
inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our
equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution,
which provides "nor shall any person be denied equal protection
of the laws," courts have never interpreted the provision as an
absolute prohibition on classification. "Equality," said Aristotle,
"consists in the same treatment of similar persons."33 The equal
protection clause guarantees that no person or class of persons
shall be deprived of the same protection of laws which is enjoyed
by other persons or other classes in the same place and in like
circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some
legitimate government end.35 In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared that
"[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled
with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine
population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to disqualify
the petitioner. Unfortunately for the respondent, the Philippine
electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that
public opinion is as the COMELEC describes it, the asserted
state interest here – that is, moral disapproval of an unpopular
minority – is not a legitimate state interest that is sufficient to
satisfy rational basis review under the equal protection clause.
The COMELEC’s differentiation, and its unsubstantiated claim
that Ang Ladlad cannot contribute to the formulation of legislation
that would benefit the nation, furthers no legitimate state interest
other than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay,
bisexual, and transgender have the same interest in participating
in the party-list system on the same basis as other political parties
similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general application should apply
with equal force to LGBTs, and they deserve to participate in the
party-list system on the same basis as other marginalized and
under-represented sectors.
It bears stressing that our finding that COMELEC’s act of
differentiating LGBTs from heterosexuals insofar as the party-list
system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for
the purposes of the equal protection clause.38 We are not
prepared to single out homosexuals as a separate class meriting
special or differentiated treatment. We have not received
sufficient evidence to this effect, and it is simply unnecessary to
make such a ruling today. Petitioner itself has merely demanded
that it be recognized under the same basis as all other groups
similarly situated, and that the COMELEC made "an unwarranted
and impermissible classification not justified by the circumstances
of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote
its agenda and attempt to persuade society of the validity of its
position through normal democratic means.39 It is in the public
square that deeply held convictions and differing opinions should
be distilled and deliberated upon. As we held in Estrada v.
Escritor:40
In a democracy, this common agreement on political and moral
ideas is distilled in the public square. Where citizens are free,
every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious
belief, and these citizens have equal access to the public square.
In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule
is a necessary principle in this democratic governance. Thus,
when public deliberation on moral judgments is finally crystallized
into law, the laws will largely reflect the beliefs and preferences of
the majority, i.e., the mainstream or median groups. Nevertheless,
in the very act of adopting and accepting a constitution and the
limits it specifies – including protection of religious freedom "not
only for a minority, however small – not only for a majority,
however large – but for each of us" – the majority imposes upon
itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting
minorities.
Freedom of expression constitutes one of the essential
foundations of a democratic society, and this freedom applies not
only to those that are favorably received but also to those that
offend, shock, or disturb. Any restriction imposed in this sphere
must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court
to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no
better reason than promoting an approved message or
discouraging a disfavored one.
This position gains even more force if one considers that
homosexual conduct is not illegal in this country. It follows that
both expressions concerning one’s homosexuality and the activity
of forming a political association that supports LGBT individuals
are protected as well.
Other jurisdictions have gone so far as to categorically rule that
even overwhelming public perception that homosexual conduct
violates public morality does not justify criminalizing same-sex
conduct.41 European and United Nations judicial decisions have
ruled in favor of gay rights claimants on both privacy and equality
grounds, citing general privacy and equal protection provisions in
foreign and international texts.42 To the extent that there is much
to learn from other jurisdictions that have reflected on the issues
we face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts,
may nevertheless have persuasive influence on the Court’s
analysis.
In the area of freedom of expression, for instance, United States
courts have ruled that existing free speech doctrines protect gay
and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by "something more
than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of
ideas and beliefs, in Europe, with its vibrant human rights
tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state if it
uses legal and democratic means and the changes it proposes
are consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order
and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking
or unacceptable to the authorities or the majority of the
population.44 A political group should not be hindered solely
because it seeks to publicly debate controversial political issues
in order to find solutions capable of satisfying everyone
concerned.45 Only if a political party incites violence or puts
forward policies that are incompatible with democracy does it fall
outside the protection of the freedom of association guarantee.46
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant.
They are entitled to hold and express that view. On the other
hand, LGBTs and their supporters, in all likelihood, believe with
equal fervor that relationships between individuals of the same
sex are morally equivalent to heterosexual relationships. They,
too, are entitled to hold and express that view. However, as far as
this Court is concerned, our democracy precludes using the
religious or moral views of one part of the community to exclude
from consideration the values of other members of the
community.
Of course, none of this suggests the impending arrival of a golden
age for gay rights litigants. It well may be that this Decision will
only serve to highlight the discrepancy between the rigid
constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus
favorable to gay rights claims and we neither attempt nor expect
to affect individual perceptions of homosexuality through this
Decision.
The OSG argues that since there has been neither prior restraint
nor subsequent punishment imposed on Ang Ladlad, and its
members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or
any assembly denied. [COMELEC] simply exercised its authority
to review and verify the qualifications of petitioner as a sectoral
party applying to participate in the party-list system. This lawful
exercise of duty cannot be said to be a transgression of Section
4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the
members of the petitioner to freely take part in the conduct of
elections. Their right to vote will not be hampered by said denial.
In fact, the right to vote is a constitutionally-guaranteed right
which cannot be limited.
As to its right to be elected in a genuine periodic election,
petitioner contends that the denial of Ang Ladlad’s petition has
the clear and immediate effect of limiting, if not outrightly nullifying
the capacity of its members to fully and equally participate in
public life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a
right but a privilege subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as
advanced by the OSG itself – the moral objection offered by the
COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a
political party and participating on an equal basis in the political
process with other equally-qualified party-list candidates, we find
that there has, indeed, been a transgression of petitioner’s
fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in
scope and promise, international human rights law, in particular,
has grown dynamically in its attempt to bring about a more just
and humane world order. For individuals and groups struggling
with inadequate structural and governmental support,
international human rights norms are particularly significant, and
should be effectively enforced in domestic legal systems so that
such norms may become actual, rather than ideal, standards of
conduct.
Our Decision today is fully in accord with our international
obligations to protect and promote human rights. In particular, we
explicitly recognize the principle of non-discrimination as it relates
to the right to electoral participation, enunciated in the UDHR and
the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the
ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status.
In this context, the principle of non-discrimination requires that
laws of general application relating to elections be applied equally
to all persons, regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human
Rights Committee has opined that the reference to "sex" in Article
26 should be construed to include "sexual
orientation."48 Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation to
be prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without
unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or
through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections
which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression
of the will of the electors;
(c) To have access, on general terms of equality, to public
service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope
of the right to electoral participation is elaborated by the Human
Rights Committee in its General Comment No. 25 (Participation in
Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of
every citizen to take part in the conduct of public affairs, the right
to vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force,
the Covenant requires States to adopt such legislative and other
measures as may be necessary to ensure that citizens have an
effective opportunity to enjoy the rights it protects. Article 25 lies
at the core of democratic government based on the consent of
the people and in conformity with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity
to stand for elective office ensures that persons entitled to vote
have a free choice of candidates. Any restrictions on the right to
stand for election, such as minimum age, must be justifiable on
objective and reasonable criteria. Persons who are otherwise
eligible to stand for election should not be excluded by
unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No
person should suffer discrimination or disadvantage of any kind
because of that person's candidacy. States parties should
indicate and explain the legislative provisions which exclude any
group or category of persons from elective office.50
We stress, however, that although this Court stands willing to
assume the responsibility of giving effect to the Philippines’
international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer
now to the petitioner’s invocation of the Yogyakarta Principles
(the Application of International Human Rights Law In Relation to
Sexual Orientation and Gender Identity),51 which petitioner
declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines.
There are declarations and obligations outlined in said Principles
which are not reflective of the current state of international law,
and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International
Court of Justice.52 Petitioner has not undertaken any objective
and rigorous analysis of these alleged principles of international
law to ascertain their true status.
We also hasten to add that not everything that society – or a
certain segment of society – wants or demands is automatically a
human right. This is not an arbitrary human intervention that may
be added to or subtracted from at will. It is unfortunate that much
of what passes for human rights today is a much broader context
of needs that identifies many social desires as rights in order to
further claims that international law obliges states to sanction
these innovations. This has the effect of diluting real human
rights, and is a result of the notion that if "wants" are couched in
"rights" language, then they are no longer controversial. 1avvphi1
meaning desires, without the support of either State practice or
opinio juris.53
As a final note, we cannot help but observe that the social issues
presented by this case are emotionally charged, societal attitudes
are in flux, even the psychiatric and religious communities are
divided in opinion. This Court’s role is not to impose its own view
of acceptable behavior. Rather, it is to apply the Constitution and
laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough
to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The
Resolutions of the Commission on Elections dated November 11,
2009 and December 16, 2009 in SPP No. 09-228 (PL) are
hereby SET ASIDE. The Commission on Elections is directed
to GRANT petitioner’s application for party-list accreditation.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Using even the most liberal of lenses, these Yogyakarta
Associate Justice Associate Justice
Principles, consisting of a declaration formulated by various
international law professors, are – at best – de lege ferenda – and
do not constitute binding obligations on the Philippines. Indeed,
so much of contemporary international law is characterized by the CONCHITA CARPIO PRESBITERO J.
"soft law" nomenclature, i.e., international law is full of principles MORALES VELASCO, JR.
that promote international cooperation, harmony, and respect for
human rights, most of which amount to no more than well-
 Associate Justice Associate Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice
Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA,
JOSE P. PEREZ
JR.
Associate Justice
Associate Justice

JOSE C. MENDOZA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified 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.

REYNATO S. PUNO
Chief Justice
A.M. No. 10-4-19-SC
RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF
RELIGIOUS RITUALS AT THE HALL OF JUSTICE BUILDING
IN QUEZON CITY
RESOLUTION
MENDOZA, J.:
One of our fundamental differences lies in our chosen religion.
Some put their faith in a god different from ours, while some may
not believe in a god at all. Nevertheless, despite the
inconveniences this difference may cause us, we must accept it
unconditionally for only upon acceptance of the fact that we are
different from each other will we learn to respect one another.
This controversy originated from a series of letters, written by
Tony Q. Valenciano (Valenciano) and addressed to then Chief
Justice Reynato S.
Puno (Chief Justice Puno).
In his first Letter,1 dated January 6, 2009, Valenciano reported
that the basement of the Hall of Justice of Quezon City (QC) had
been converted into a Roman Catholic Chapel, complete with
offertory table, images of Catholic religious icons, a canopy, an
electric organ, and a projector. He believed that such practice
violated the constitutional provision on the separation of Church
and State and the constitutional prohibition against the
appropriation of public money or property for the benefit of a sect,
church, denomination, or any other system of religion.
Valenciano further averred that the holding of masses at the
basement of the QC Hall of Justice showed that it tended to favor
Catholic litigants; that the rehearsals of the choir caused great
disturbance to other employees; that the public could no longer
use the basement as resting place; that the employees and
litigants of the Public Attorney's Office (PAO), Branches 82 and
83 of the Regional Trial Court (RTC), Legal Library, Philippine
Mediation Center, and Records Section of the Office of the Clerk
of Court (OCC) could not attend to their personal necessities
such as going to the lavatories because they could not traverse
the basement between 12:00 o'clock noontime and 1: 15 o'clock
in the afternoon; that the court employees became hostile toward
each other as they vied for the right to read the epistle; and that
the water supply in the entire building was cut off during the mass
because the generator was turned off to ensure silence.
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice
Puno referred Valenciano 's letter to then Deputy Court
Administrator (DCA) and Officer-in-Charge of the Office on Halls
of Justice, Antonio H. Dujua (DCA Dujua).
In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11,
2009, referred the letter to Executive Judge Teodoro A.
Bay (Judge Bay) of the RTC and to Executive Judge Luis Zenon
Q. Maceren (Judge Maceren) of the Metropolitan Trial
Court (MeTC) for their respective comments.
In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge
Maceren clarified that the basement of the QC Hall of Justice was
known as the prayer corner. He opined that the use of the said
area for holding masses did not violate the constitutional
prohibition against the use of public property for religious
purposes because the religious character of such use was merely
incidental to a temporary use.
In his Memorandum,5 dated March 10, 2009, Judge Bay
manifested that he was due to compulsorily retire on April 29,
2009, and he was taking a leave of absence prior to such date to
concentrate in resolving cases submitted for decision before his
sala and requested that then Vice-Executive Judge Jaime N.
Salazar (Judge Salazar) be assigned to further investigate, study,
and make recommendations on the matter raised by Valenciana.
In the meantime, Judge Bay recommended that, pending the final
resolution of the case, daily masses be permitted to continue,
provided that: (1) the mass be limited to thirty (30) minutes; (2) no
loud singing be allowed so as not to disturb others; and (3) the
inconveniences caused by the mass be addressed.
In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno
referred another letter of Valenciano, dated May 13, 2009, to
DCA Dujua for appropriate action, as he complained that masses
continued to be held at the basement of the QC Hall of Justice.
On March 23, 2010, Valenciano wrote another letter,7 praying that
rules be promulgated by the Court to put a stop to the holding of
Catholic masses, or any other religious rituals, at the QC Hall of
Justice and in all other halls of justice in the country.
In its June 22, 2010 Resolution,8 the Court noted the March 23,
2010 letter of Valenciano and referred the matter to the Office of
the Court Administrator (OCA) for evaluation, report and
recommendation.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA,
through then Assistant Court Administrator (ACA) Jenny Lind R.
AldecoaDelorino (now Deputy Court Administrator), referred the
letters of Valenciano to the incumbent RTC Executive Judge
Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and incumbent MeTC
Executive Judge Caridad M. WalseLutero (Judge Lutero).
In his Letter-Comment,10 dated September 9, 2010, Judge Sagun,
Jr. informed the Court that his office had already implemented
measures to address Valenciano's complaints. He reported that
masses were shortened to a little over thirty (30) minutes; that it
was only during special holy days of obligation when the
celebration of mass went beyond one (1) o'clock in the afternoon;
that the pathways leading to the lavatories were open and could
be used without obstruction; that there was never an instance
where the actions of court personnel, who were vying to read the
epistle during mass, caused back-biting and irritation among
themselves; that the water generator had been broken beyond
repair and decommissioned since December 2009; and that the
court employees prepared for the mass before the day officially
started, so that the performance of their official duties in court
was not hampered.
In her letter,11 Judge Lutero reported that Catholic masses were
being held only during lunch breaks and did not disturb court
proceedings; that the basement of the QC Hall of Justice could
still be used as waiting area for the public; that court personnel
and the public were never physically prevented from reaching the
lavatories during mass as there was a clear path from the public
offices leading to the comfort rooms; that water service
interruptions were caused by maintenance problems and not
because the water pump was being shut off during mass; and
that the elevators could not be used during mass because
elevator attendants took their lunch break from twelve (12) o'clock
to one (1) o'clock in the afternoon.
Judge Lutero opined that it is not the conduct of masses in public
places which the Constitution prohibited, but the passage of laws
or the use of public funds for the purpose of establishing a
religion or prohibiting the free exercise thereof. She conveyed the
fact that no law or rule had been passed and that no public funds
had been appropriated or used to support the celebration of
masses. She added that the holding of Catholic masses did not
mean that Catholics had better chances of obtaining favorable
resolutions from the court.
Accordingly, Judge Lutero recommended that the holding of
masses at the basement of the QC Hall of Justice be allowed to
continue considering that it was not inimical to the interests of the
court employees and the public.
The OCA Report
and Recommendation
In its Memorandum,12 dated August 7, 2014, the OCA believed
that the practical inconveniences cited by Valenciano were
unfounded. It, thus, recommended that his letter-complaints,
dated January 6, 2009, May 13, 2009 and March 23, 2010, be
dismissed for lack of merit and that the RTC and MeTC Executive
Judges of QC be directed to closely regulate and monitor the
holding of masses and other religious practices within the
premises of the QC Hall of Justice. 1âwphi1
The OCA opined that the principle of separation of Church and
State, particularly with reference to the Establishment Clause,
ought not to be interpreted according to the rigid standards of
separation; that the neutrality of the State on religion should be
benevolent because religion was an ingrained part of society and
played an important role in it; and that the State, therefore,
instead of being belligerent (in the case of Strict Separation) or
being aloof (in the case of Strict Neutrality) towards religion
should instead interact and forbear.13
The OCA advanced the view that the standard of Benevolent
Neutrality/Accommodation was espoused because the principal
religion clauses in our Constitution were not limited to the
Establishment Clause, which created a wall between the Church
and the State, but was quickly followed by the declaration of the
Free Exercise Clause, which protected the right of the people to
practice their religion. In effect, the standard of Benevolent
Neutrality/Accommodation balanced the interest of the State
through the Establishment Clause, and the interest and right of
the individual to freely exercise his religion as guaranteed by the
Free Exercise Clause.14
The OCA observed that the present controversy did not involve a
national or local law or regulation in conflict with the Free
Exercise Clause. On the contrary, Valenciano was merely
questioning the propriety of holding religious masses at the
basement of the QC Hall of Justice, which was nothing more than
an issue of whether the said religious practice could be
accommodated or not. It ended up concluding that based on
prevailing jurisprudence, as well as the interpretations given to
the religion clauses of the 1987 Constitution, there was nothing
constitutionally abhorrent in allowing the continuation of the
masses.15
The OCA added that by allowing or accommodating the
celebration of Catholic masses within the premises of the QC Hall
of Justice, the Court could not be said to have established Roman
Catholicism as an official religion or to have endorsed the said
religion, for the reason that it also allowed other religious
denominations to practice their religion within the courthouses.16
ISSUE
WHETHER THE HOLDING OF MASSES AT THE BASEMENT
OF THE QUEZON CITY HALL OF JUSTICE VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH
AND STATE AS WELL AS THE CONSTITUTIONAL
PROHIBITION AGAINST APPROPRIATION OF PUBLIC MONEY
OR PROPERTY FOR THE BENEFIT OF ANY SECT, CHURCH,
DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF
RELIGION.
The Court's Ruling
The Court agrees with the findings and recommendation of the
OCA and denies the prayer of Valenciano that the holding of
religious rituals of any of the world's religions in the QC Hall of
Justice or any halls of justice all over the country be prohibited.
The Holding of Religious
Rituals in the Halls of Justice
does not Amount to a Union of
Church and State
As earlier stated, Valenciano is against the holding of religious
rituals in the halls of justice on the ground that it violates the
constitutional provision on the separation of Church and State
and the constitutional prohibition against the appropriation of
public money or property for the benefit of a sect, church,
denomination, or any other system of religion. Indeed, Section 6,
Article II of the 1987 Constitution provides:
The separation of Church and State shall be inviolable.17
The Court once pronounced that "our history, not to speak of the
history of mankind, has taught us that the union of church and
state is prejudicial to both, for occasions might arise when the
state will use the church, and the church the state, as a weapon
in the furtherance of their respective ends and aims."18
Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying,
"Strong fences make good neighbors." The idea is to delineate
the boundaries between the two institutions and, thus, avoid
encroachments by one against the other because of a
misunderstanding of the limits of their respective exclusive
jurisdictions. The demarcation line calls on the entities to "render
therefore unto Caesar the things that are Caesar's and unto God
the things that are God's."19
This, notwithstanding, the State still recognizes the inherent right
of the people to have some form of belief system, whether such
may be belief in a Supreme Being, a certain way of life, or even
an outright rejection of religion. Our very own Constitution
recognizes the heterogeneity and religiosity of our people as
reflected in lmbong v. Ochoa,20 as follows:
At the outset, it cannot be denied that we all live in a
heterogeneous society. It is made up of people of diverse ethnic,
cultural and religious beliefs and backgrounds. History has shown
us that our government, in law and in practice, has allowed these
various religious, cultural, social and racial groups to thrive in a
single society together. It has embraced minority groups and is
tolerant towards all - the religious people of different sects and
the non-believers. The undisputed fact is that our people
generally believe in a deity, whatever they conceived Him to be,
and to Whom they called for guidance and enlightenment in
crafting our fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty
God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations,
promote the common good, conserve and develop our patrimony,
and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime
of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty
God" manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means that
the State recognizes with respect the influence of religion in so far
as it instills into the mind the purest principles of morality.
Moreover, in recognition of the contributions of religion to society,
the 1935, 1973 and 1987 Constitutions contain benevolent and
accommodating provisions towards religions such as tax
exemption of church property, salary of religious officers in
government institutions, and optional religious instructions in
public schools. [Emphases supplied]
In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how
religion could serve as a motivating force behind each person's
actions:
Religious freedom, however, as a constitutional mandate is not
inhibition of profound reverence for religion and is not a denial of
its influence in human affairs. Religion as a profession of faith to
an active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their
Constitution, implored "the aid of Divine Providence, in order to
establish a government that shall embody their ideals, conserve
and develop the patrimony of the nation, promote the general
welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested their intense religious
nature and placed unfaltering reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion
in human society is recognized here as elsewhere. In fact, certain
general concessions are indiscriminately accorded to religious
sects and denominations. Our Constitution and laws exempt from
taxation properties devoted exclusively to religious purposes (sec.
14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1,
subsec. Ordinance appended thereto; Assessment Law, sec.
344, par [c], Adm. Code) sectarian aid is not prohibited when a
priest, preacher, minister or other religious teacher or dignitary as
such is assigned to the armed forces or to any penal institution,
orphanage or leprosarium xxx. Optional religious instruction in the
public schools is by constitutional mandate allowed xxx. Thursday
and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays are made legal holidays (sec. 29, Adm. Code) because
of the secular idea that their observance is conducive to
beneficial moral results. The law allows divorce but punishes
polygamy and bigamy; and certain crimes against religious
worship are considered crimes against the fundamental laws of
the state xxx.22 [Emphasis supplied]
Thus, the right to believe or not to believe has again been
enshrined in Section 5, Article III of the 1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference,
shall forever be allowed. xxx.
Free Exercise Clause
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently 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."23
"The right to religious profession and worship has a two-fold
aspect - 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."24 Justice Isagani A. Cruz explained these two (2)
concepts in this wise:
(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 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."25
Allowing religion to flourish is not contrary to the principle of
separation of Church and State. In fact, these two principles are
in perfect harmony with each other.
The State is aware of the existence of religious movements
whose members believe in the divinity of Jose Rizal. Yet, it does
not implement measures to suppress the said religious sects.
Such inaction or indifference on the part of the State gives
meaning to the separation of Church and State, and at the same
time, recognizes the religious freedom of the members of these
sects to worship their own Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express
their worship through the holy mass and to stop these would be
tantamount to repressing the right to the free exercise of their
religion. Our Muslim brethren, who are government employees,
are allowed to worship their Allah even during office hours inside
their own offices. The Seventh Day Adventists are exempted from
rendering Saturday duty because their religion prohibits them
from working on a Saturday. Even Christians have been allowed
to conduct their own bible studies in their own offices. All these
have been allowed in respect of the workers' right to the free
exercise of their religion. xxx"26
Clearly, allowing the citizens to practice their religion is not
equivalent to a fusion of Church and State.
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its
way if there is a compelling state interest. To successfully invoke
compelling state interest, it must be demonstrated that the
masses in the QC Hall of Justice unduly disrupt the delivery of
public services or affect the judges and employees in the
performance of their official functions. In Estrada v. Escritor,27 the
Court expounded on the test as follows:
The "compelling state interest" test is proper where conduct is
involved for the whole gamut of human conduct has different
effects on the state's interests: some effects may be immediate
and short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a substantive
evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental .right
that enjoys a preferred position in the hierarchy of rights - "the
most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos
implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in
Sherbert, only the gravest abuses, endangering paramount
interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest
is therefore not appropriate. Instead, only a compelling interest of
the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are
destroyed. In determining which shall prevail between the state's
interest and religious liberty, reasonableness shall be the guide.
The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in
Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be
preserved.137 [Citations omitted] [Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses
were being conducted only during noon breaks and were not
disruptive of public services. The court proceedings were not
being distracted or interrupted and that the performance of the
judiciary employees were not being adversely affected. Moreover,
no Civil Service rules were being violated. As there has been no
detrimental effect on the public service or prejudice to the State,
there is simply no state interest compelling enough to prohibit the
exercise of religious freedom in the halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or
tolerant. On November 13, 1981, the CSC came out with
Resolution No. 81-1277, which provided, among others, that
"during Friday, the Muslim pray day, Muslims are excused from
work from 10:00 o'clock in the morning to 2:00 o'clock in the
afternoon." The Court struck this down28 as not sanctioned by the
law. It wrote:
To allow the Muslim employees in the Judiciary to be excused
from work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim
Prayer Day) during the entire calendar year would mean a
diminution of the prescribed government working hours. For then,
they would be rendering service twelve (12) hours less than that
required by the civil service rules for each month. Further, this
would encourage other religious denominations to request for
similar treatment.
The performance of religious practices, whether by the Muslim
employees or those belonging to other religious denominations,
should not prejudice the courts and the public. Indeed, the
exercise of religious freedom does not exempt anyone from
compliance with reasonable requirements of the law, including
civil service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of
religion, the State adopts a policy of
accommodation. Accommodation is a recognition of the reality
that some governmental measures may not be imposed on a
certain portion of the population for the reason that these
measures are contrary to their religious beliefs. As long as it can
be shown that the exercise of the right does not impair the public
welfare, the attempt of the State to regulate or prohibit such right
would be an unconstitutional encroachment.29
In Estrada v. Escritor,30 the 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 into account 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." [Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld
the exemption of members of Iglesia ni Cristo from the coverage
of a closed shop agreement between their employer and a union,
because it would violate the teaching of their church not to
affiliate with a labor organization.
In Ebralinag v. Division Superintendent of Schools of Cebu,32 the
petitioners, who were members of the Jehovah 's
Witnesses, refused to salute the flag, sing the national anthem,
and recite the patriotic pledge for it is their belief that those were
acts of worship or religious devotion, which they could not
conscientiously give to anyone or anything except God. The
Court accommodated them and granted them an exemption from
observing the flag ceremony out of respect for their religious
beliefs.
Further, several laws have been enacted to accommodate
religion. The Revised Administrative Code of 1987 has declared
Maundy Thursday, Good Friday, and Christmas Day as regular
holidays. Republic Act (R.A.) No. 9177 proclaimed the FIRST Day
of Shawwal, the tenth month of the Islamic Calendar, a national
holiday for the observance of Eidul Fitr (the end of Ramadan).
R.A. No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth
month of the Islamic Calendar, a national holiday for the
observance of Eidul Adha. Presidential Decree (P.D.) No. 1083,
otherwise known as the Code of Muslim Personal Laws of the
Philippines, expressly allows a Filipino Muslim to have more than
one (1) wife and exempts him from the crime of bigamy
punishable under Revised Penal Code (RPC). The same Code
allows Muslims to have divorce.33
As to Muslims in government offices, Section 3 of P.D. No. 291,
as amended by P.D. No. 322, provides:
Sec. 3. (a) During the fasting season on the month of Ramadan,
all Muslim employees in the national government, government-
owned or controlled corporations, provinces, cities, municipalities
and other instrumentalities shall observe office hours from seven-
thirty in the morning (7:30 a.m.) to three-thirty in the afternoon
(3:30 p.m.) without lunch break or coffee breaks, and that there
shall be no diminution of salary or wages, provided, that the
employee who is not fasting is not entitled to the benefit of this
provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277,
dated November 13, 1981, which reads in part:
2. During "Ramadan" the Fasting month (30 days) of the Muslims,
the Civil Service official time of 8 o'clock to 12 o'clock and 1
o'clock to 5 o'clock is hereby modified to 7:30 AM. to 3:30 P.M.
without noon break and the difference of 2 hours is not counted
as undertime.
Following the decree, in Re: Request of Muslim Employees in the
Different Courts in Iligan City (Re: Office Hours),34 the Court
recognized that the observance of Ramadan as integral to the
Islamic faith and allowed Muslim employees in the Judiciary to
hold flexible office hours from 7:30 o'clock in the morning to 3:30
o'clock in the afternoon without any break during the period. This
is a clear case of accommodation because Section 5, Rule XVII
of the Omnibus Rules Implementing Book V of E.0. No. 292,
enjoins all civil servants, of whatever religious denomination, to
render public service of no less than eight (8) hours a day or forty
(40) hours a week.
Non-Establishment Clause
On the opposite side of the spectrum is the constitutional
mandate that "no law shall be made respecting an establishment
of religion,"35 otherwise known as the non-establishment clause.
Indeed, there is a thin line between accommodation and
establishment, which makes it even more imperative to
understand each of these concepts by placing them in the Filipino
society's perspective.
The non-establishment clause reinforces the wall of separation
between Church and State. It simply means that the State cannot
set up a Church; nor pass laws which aid one religion, aid all
religion, or prefer one religion over another nor force nor influence
a person to go to or remain away from church against his will or
force him to profess a belief or disbelief in any religion; that the
state cannot punish a person for entertaining or professing
religious beliefs or disbeliefs, for church attendance or
nonattendance; that no tax in any amount, large or small, can be
levied to support any religious activity or institution whatever they
may be called or whatever form they may adopt or teach or
practice religion; that the state cannot openly or secretly
participate in the affairs of any religious organization or group and
vice versa.36 Its minimal sense is that the state cannot establish or
sponsor an official religion.37
In the same breath that the establishment clause restricts what
the government can do with religion, it also limits what religious
sects can or cannot do. They can neither cause the government
to adopt their particular doctrines as policy for everyone, nor can
they cause the government to restrict other groups. To do so, in
simple terms, would cause the State to adhere to a particular
religion and, thus, establish a state religion.38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government
neutrality in religious matters. Such government neutrality may be
summarized in four general propositions: (1) Government must
not prefer one religion over another or religion over irreligion
because such preference would violate voluntarism and breed
dissension; (2) Government funds must not be applied to religious
purposes because this too would violate voluntarism and breed
interfaith dissension; (3) Government action must not aid religion
because this too can violate voluntarism and breed interfaith
dissension; [and] (4) Government action must not result in
excessive entanglement with religion because this too can violate
voluntarism and breed interfaith dissension."39
Establishment entails a positive action on the part of the State.
Accommodation, on the other hand, is passive. In the former, the
State becomes involved through the use of government
resources with the primary intention of setting up a state religion.
In the latter, the State, without being entangled, merely gives
consideration to its citizens who want to freely exercise their
religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario
G. Davide, Jr., the Office of the Chief Attorney recommended to
deny, on constitutional grounds, the request of Rev. Fr. Carlo M.
Ilagan to hold a oneday vigil in honor of the Our Lady of
Caysasay within the premises of the Court. Such controversy
must be distinguished from the present issue in that with respect
to the former, a Catholic priest was the one who requested for the
vigil. Moreover, in that case, the vigil would take one (1) whole
working day; whereas in this case, the masses are held at the
initiative of Catholic employees and only during the thirty-minute
lunch break.
Guided by the foregoing, it is our considered view that the holding
of Catholic masses at the basement of the QC Hall of Justice is
not a case of establishment, but merely accommodation.
First, there is no law, ordinance or circular issued by any duly
constitutive authorities expressly mandating that judiciary
employees attend the Catholic masses at the
basement. Second, when judiciary employees attend the masses
to profess their faith, it is at their own initiative as they are there
on their own free will and volition, without any coercion from the
judges or administrative officers. Third, no government funds are
being spent because the lightings and airconditioning continue to
be operational even if there are no religious rituals
there. Fourth, the basement has neither been converted into a
Roman Catholic chapel nor has it been permanently appropriated
for the exclusive use of its faithful. Fifth, the allowance of the
masses has not prejudiced other religions.
No Appropriation of Public
Money or Property for the
Benefit of any Church
Section 29 (2), Article VI of the 1987 Constitution provides, "No
public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of
any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or other religious
teacher, or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium."
The word "apply" means "to use or employ for a particular
purpose."40 "Appropriate" means "to prescribe a particular use for
particular moneys or to designate or destine a fund or property for
a distinct use, or for the payment of a particular demand."41
Under the principle of noscitur a sociis, where a particular word or
phrase is ambiguous in itself or is equally susceptible of various
meanings, its correct construction may be made clear and
specific by considering the company of words in which it is found
or with which it is associated. This is because a word or phrase in
a statute is always used in association with other words or
phrases, and its meaning may, thus, be modified or restricted by
the latter. The particular words, clauses and phrases should not
be studied as detached and isolated expressions, but the whole
and every part of the statute must be considered in fixing the
meaning of any of its parts and in order to produce a harmonious
whole. A statute must be so construed as to harmonize and give
effect to all its provisions whenever possible.42
Thus, the words "pay" and "employ" should be understood to
mean that what is prohibited is the use of public money or
property for the sole purpose of benefiting or supporting any
church. The prohibition contemplates a scenario where the
appropriation is primarily intended for the furtherance of a
particular church.
It has also been held that the aforecited constitutional provision
"does not inhibit the use of public property for religious purposes
when the religious character of such use is merely incidental to a
temporary use which is available indiscriminately to the public in
general." Hence, a public street may be used for a religious
procession even as it is available for a civic parade, in the same
way that a public plaza is not barred to a religious rally if it may
also be used for a political assemblage.43
In relation thereto, the phrase "directly or indirectly" refers to the
manner of appropriation of public money or property, not as to
whether a particular act involves a direct or a mere incidental
benefit to any church. Otherwise, the framers of the Constitution
would have placed it before "use, benefit or support" to describe
the same. Even the exception to the same provision bolsters this
interpretation. The exception contemplates a situation wherein
public funds are paid to a priest, preacher, minister, or other
religious teacher, or dignitary because they rendered service in
the armed forces, or to any penal institution, or government
orphanage or leprosarium. That a priest belongs to a particular
church and the latter may have benefited from the money he
received is of no moment, for the purpose of the payment of
public funds is merely to compensate the priest for services
rendered and for which other persons, who will perform the same
services will also be compensated in the same manner.
Ut magis valeat quam pereat. The Constitution is to be
interpreted as a whole.44 As such, the foregoing interpretation
finds support in the
Establishment Clause, which is as clear as daylight in stating that
what is proscribed is the passage of any law which tends to
establish a religion, not merely to accommodate the free exercise
thereof.
The Constitution even grants tax exemption to properties actually,
directly and exclusively devoted to religious purposes.45 Certainly,
this benefits the religious sects for a portion of what could have
been collected for the benefit of the public is surrendered in their
favor.
In Manosca v. CA,46 a parcel of land located in Taguig was
determined by the National Historical Institute to be the birthsite
of Felix Y. Manalo, the founder of Iglesia ni Cristo. The Republic
then sought to expropriate the said property. The exercise of the
power of eminent domain was questioned on the ground that it
would only benefit members of Iglesia ni Cristo. The Court upheld
the legality of the expropriation, viz.:
The practical reality that greater benefit may be derived by
members of the Iglesia ni Cristo than by most others could well
be true but such a peculiar advantage still remains to be merely
incidental and secondary in nature.47 [Emphasis supplied]
Again, in Aglipay, the issuing and selling of postage stamps
commemorative of the Thirty-third International Eucharistic
Congress was assailed on the ground that it violated the
constitutional prohibition against the appropriation of public
money or property for the benefit of any church. In ruling that
there was no such violation, the Court held:
It is obvious that while the issuance and sale of the stamps in
question may be said to be inseparably linked with an event of a
religious character, the resulting propaganda, if any, received by
the Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should
not be embarrassed in its activities simply because of incidental
results, more or less religious in character, if the purpose had in
view is one which could legitimately be undertaken by appropriate
legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not
contemplated.48 [Emphasis supplied]
Here, the basement of the QC Hall of Justice is not appropriated,
applied or employed for the sole purpose of supporting the
Roman Catholics.
Further, it has not been converted into a Roman Catholic chapel
for the exclusive use of its faithful contrary to the claim of
Valenciana. Judge
Maceren reported that the basement is also being used as a
public waiting area for most of the day and a meeting place for
different employee organizations. The use of the area for holding
masses is limited to lunch break period from twelve (12) o'clock to
one (1) o'clock in the afternoon. Further, Judge Sagun, Jr. related
that masses run for just a little over thirty (30) minutes. It is,
therefore, clear that no undue religious bias is being committed
when the subject basement is allowed to be temporarily used by
the Catholics to celebrate mass, as the same area can be used
by other groups of people and for other purposes.49 Thus, the
basement of the QC Hall of Justice has remained to be a public
property devoted for public use because the holding of Catholic
masses therein is a mere incidental consequence of its primary
purpose.
Conclusion
Directing the Executive Judges of the RTC and MeTC to regulate
and closely monitor the holding of masses and other religious
practices within the courts does not promote excessive
collaboration between courts and various religions. On the
contrary, this is necessary to ensure that there would be no
excessive entanglement.
To disallow the holding of religious rituals within halls of justice
would set a dangerous precedent and commence a domino
effect. Strict separation, rather than benevolent
neutrality/accommodation, would be the norm. Thus, the
establishment of Shari'a courts, the National Commission for
Muslim Filipinos, and the exception of Muslims from the
provisions of the RPC relative to the crime of bigamy would all be
rendered nugatory because of strict separation. The exception of
members of Iglesia ni Cristo from joining a union or the non-
compulsion recognized in favor of members of the Jehovah's
Witnesses from doing certain gestures during the flag ceremony,
will all go down the drain simply because we insist on strict
separation.
That the holding of masses at the basement of the QC Hall of
Justice may offend non-Catholics is no reason to proscribe it. Our
Constitution ensures and mandates an unconditional tolerance,
without regard to whether those who seek to profess their faith
belong to the majority or to the minority. It is emphatic in saying
that "the free exercise and enjoyment of religious profession and
worship shall be without discrimination or preference." Otherwise,
accommodation or tolerance would just be mere lip service.
One cannot espouse that the constitutional freedom of religion
ensures tolerance, but, in reality, refuses to practice what he
preaches. One cannot ask for tolerance when he refuses to do
the same for others.
In fine, the Court denies the plea that the holding of Catholic
masses at the basement of the QC Hall of Justice be prohibited
because the said practice does not violate the constitutional
principle of separation of Church and State and the constitutional
prohibition against appropriation of public money or property for
the benefit of a sect, church, denomination, or any other system
of religion.
WHEREFORE, the Court resolves to:
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated
January 6, 2009, May 13, 2009, and March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the
Office on Halls of Justice, containing photocopies and certified
photocopies of previous actions made relative to the complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of
Quezon City Regional Trial Court Executive Judge Fernando T.
Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City
Metropolitan Trial Court Executive Judge Caridad M. Walse-
Lutero;
5. DENY the prayer of Tony Q. Valenciano to prohibit the holding
of religious rituals in the QC Hall of Justice and in all halls of
justice in the country; and
6. DIRECT the Executive Judges of Quezon City
to REGULATE and CLOSELY MONITOR the holding of masses
and other religious practices within the Quezon City Hall of
Justice by ensuring, among others, that:
(a) it does not disturb or interrupt court proceedings;
(b) it does not adversely affect and interrupt the delivery of public
service; and
(c) it does not unduly inconvenience the public.
In no case shall a particular part of a public building be a
permanent place for worship for the benefit of any and all
religious groups. There shall also be no permanent display of
religious icons in all halls of justice in the country. In case of
religious rituals, religious icons and images may be displayed but
their presentation is limited only during the celebration of such
activities so as not to offend the sensibilities of members of other
religious denominations or the non-religious public. After any Associate Justice CASTILLO
religious affair, the icons and images shall be hidden or Associate Justice
concealed from public view.

The disposition in this administrative matter shall apply to all halls ESTELA M. PERLAS-
of justice in the country. Other churches, religious denominations BIENVENIDO L. REYES
BERNABE
or sects are entitled to the same rights, privileges, and practices Associate Justice
Associate Justice
in every hall of justice. In other buildings not owned or controlled
by the Judiciary, the Executive Judges should coordinate and
seek approval of the building owners/administrators
accommodating their courts. MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
Associate Justice Associate Justice
SO ORDERED.

JOSE CATRAL MENDOZA ALFREDO BENJAMIN S. CAGUIOA

Associate Justice Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

PRESBITERO J.
ANTONIO T. CARPIO
VELASCO, JR.
Associate Justice
Associate Justice

TERESITA J.
DIOSDADO M. PERALTA
LEONARDO-DE CASTRO
Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL