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Republic of the Philippines SUPREME COURT OF THE PHILIPPINES Manila

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA AND THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,

- versus -

COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON,

Respondents.

x-------------------------------------------------x

SC-G.R. SP. No. 205728 (Petition for Certiorari and Prohibition with Application for Preliminary Injunction and Temporary Restraining Order)

URGENT PETITION

FOR CERTIORARI AND PROHIBITION

WITH APPLICATION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER

PETITIONERS, through the undersigned counsel, unto this Honorable Court, respectfully state that:

STATEMENT OF THE CASE

1. This petition is about the exercise of freedom of expression and the principle of separation of Church and State;

the Bacolod Cathedral (hereinafter referred to as the “Team Patay Tarpaulin” for brevity);

3. Petitioners also seek to nullify the Order issued by the Respondent Commission on Elections (“COMELEC”) on 27 February 2013 through its Law Department which orders the immediate removal of the Team Patay Tarpaulin and threatening the petitioner Bishop of Bacolod with the filing of an election offense if he fails to cause its immediate removal;

4. The prayer for the declaration of the said orders/directives of respondents as null and void is anchored upon two main grounds:

a. First, the questioned orders/directives are patently unconstitutional as they infringe on the fundamental right to freedom of expression of the petitioners;

b. Second, the questioned orders/directives are unconstitutional as they violate the principle of separation of Church and State;

5. Respondents have committed grave abuse of discretion amounting to lack or excess of jurisdiction by the issuance of the said orders/directives;

6. This petition is a special civil action for Certiorari and Prohibition brought under Rule 65 of the Rules of Court;

7. Petitioners have no other plain, speedy, and adequate remedy in the ordinary course of law which would promptly free the petitioners from the injurious effects of the respondents’ acts on the basic constitutional rights of the petitioners to freedom of expression and the principle of separation of Church and State;

8. The seriousness of the constitutional questions raised in this petition against the respondent Commission on Elections and the grave repercussions of the questions orders/directives on the basic right of the petitioners to freedom of expression constitute an exceptional and compelling reason to justify a direct resort to this Honorable Court in the first instance by way of exception to the rule on hierarchy of courts.

quo warranto, habeas corpus and injunction may be allowed where the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify such invocation;

10. Furthermore, respondents’ acts are capable of repetition to the great prejudice of the constitutional right of petitioners to freedom of expression; thus, there is a need for a definitive pronouncement from this Court which is the final and ultimate arbiter of the meaning and scope of all constitutional rights;

THE PARTIES

11. Petitioner Diocese of Bacolod is a Roman Catholic diocese that was established and existing by virtue of the Bull issued by Pope Pius XI on July 15, 1932. It has office at the Bishop’s House, Bacolod City, and is represented in this petition by its Bishop, the Most Rev. Vicente M. Navarra, who is of legal age, Filipino and a resident of the Bishop’s House, Bacolod City;

12. Petitioner Vicente M. Navarra, the Bishop of the Diocese of Bacolod, is also filing this petition in his individual and personal capacity as the questioned orders are personally directed at him and also as a concerned citizen, as the issues raised herein are matters of paramount and transcendental importance to the public which must be settled early given the far-reaching implications of the unconstitutional acts of the respondents;

13. Petitioners may be served with copies of all notices, pleadings, orders, and other processes of this Honorable Court through the office address of its undersigned counsels as indicated below;

14. Respondent Commission on Election (“COMELEC”) is the constitutional commission/body which has issued the questioned order/directive dated 27 February 2013. It may be served with summons, notices, orders, resolutions and other court processes at its office address at Palacio Del Gobernador Building, Intramuros, Manila;

15. Respondent Atty. Mavil V. Majarucon is the Election Officer f

th

Cit

f

B

l

d

h

i

d

th

ti

d

processes at the Bacolod Office of the COMELEC at San Juan St., fronting the Public Plaza, Bacolod City;

THE PERTINENT FACTS

16. Sometime on 21 February 2013, the petitioners, the Bishop and the Diocese of Bacolod, have caused to be placed on the front wall of the Bacolod Cathedral two (2) sets of tarpaulins, each sized 6x10 feet. The first tarpaulin on the left side contains the message that says “IBASURA” to the RH Law and the second tarpaulin on the right side is the subject Team Patay Tarpaulin;

17. Based on the records of voting on the adoption of the Reproductive Health Law (R.A. 10354, the “RH Law”), the petitioners consider the following candidates as ANTI-LIFE and called them “TEAM PATAY”:

1. Angara, Juan Edgardo

2. Casiño, Teddy

3. Cayetano, Alan Peter

4. Enrile, Jackie

5. Escudero, Francis

6. Hontiveros, Risa

7. Legarda, Loren

8. Party Lists Gabriela

9. Party List Akbayan

10. Party List Bayan Muna

11. Party List Anak Pawis

18. On the other hand, the petitioners consider the following candidates as PRO-LIFE because of their opposition to the RH Law and called them “TEAM BUHAY”:

1. Estrada, JV

2. Honasan, Gregorio

3. Magsaysay, Mitos

6. Villar, Cynthia

7. Party List Buhay

8. Party List Ang Pamilya

19. Petitioners

are

neither

candidates

neither

nor

affiliated

political

with

Likewise, petitioners

members of any political party;

are

parties.

are

nor

20. The Bacolod Cathedral where the subject Team Patay Tarpaulin is posted and displayed is a private property that is owned by the petitioner Diocese of Bacolod;

21. Sometime on 22 February 2013, the Respondent Atty. Mavil V. Majarucon, Election Officer of Bacolod City, issued a Notice addressed to the petitioner Bishop Vicente M. Navarra ordering the latter to remove the subject Team Patay Tarpaulin within three (3) days from receipt, claiming that it is an “oversized” campaign material prohibited under Comelec Resolution No. 9615 which was issued only last January 15, 2013;

22. An attempt was made to have copy of the said Notice certified by the COMELEC Office in Bacolod City this afternoon of 28 February 2013 but was refused on the ground that only the Respondent Atty. Mavil Majarucon, who was in Iloilo this afternoon, can certify the same as a true copy. Hence, in lieu of a certified true copy, the original copy of the said Notice received by the Petitioners is hereto attached to the original copy of this petition as ANNEX “A”;

23. On

25

February

2013,

petitioners

sent

a

reply

to

the

Respondent Mavil Majarucon requesting, among others, that:

a. Petitioner Bishop of Bacolod be given a definitive ruling by the COMELEC Legal Department regarding the subject Team Patay Tarpaulins;

b. That pending the opinion of the COMELEC Legal Department and the availment of the proper legal remedies available to the Diocese, the subject tarpaulins be allowed to remain;

24. A true and faithful machine reproduction of the said Reply ”

25. On 27 February 2013 at around 4:30 p.m., the Respondent Atty. Mavil V. Majarucon went to the Bishop’s House together with another man who may also be from the COMELEC to attempt to enforce her previous order/directive to remove the subject tarpaulins, which was refused by the petitioners;

26. On the same day, the Respondent COMELEC through its Law Department also issued an Order directing the immediate removal of the subject Team Patay Tarpaulin and threatening the petitioner Bishop of Bacolod with the filing of an election offense if he fails to cause its immediate removal;

27. However, only a faxed copy of the said Order dated 27 November 2013 was delivered to the Petitioners. An attempt was also made to have copy of the said Notice certified by the COMELEC Office in Bacolod City also this afternoon of 28 February 2013 but was also refused on the same ground that only the Respondent Atty. Mavil Majarucon, who was then in Iloilo, can certify the same as a true copy. Hence, in view of the urgency of the filing of this petition, Petitioners are attaching photocopies of the said Order as ANNEX “C” and would present the certified true copies thereof as soon as it can be secured from the Respondents;

28. Said Order, a fax copy of which was delivered on the petitioners shows that respondent COMELEC appears keen on proceeding to cause the removal of the subject tarpaulin, which would cause irreparable damage and injury on petitioners’ right to freedom of expression;

GROUNDS FOR THE ALLOWANCE OF THE PETITION

I.

RESPONDENTS’ ORDERS/DIRECTIVES TO REMOVE OR CAUSE THE REMOVAL OF THE SUBJECT TEAM PATAY TARPAULIN ARE UNCONSTITUTIONAL AND VOID FOR INFRINGING ON PETITIONERS’ RIGHT TO FREEDOM OF EXPRESSION ON THEIR OWN PRIVATE

II.

RESPONDENTS’ ORDERS/DIRECTIVES TO REMOVE OR CAUSE THE REMOVAL OF THE SUBJECT TEAM PATAY TARPAULIN ARE UNCONSTITUTIONAL AND VOID FOR VIOLATING THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE ENSHRINED IN SECTION 6 OF ARTICLE II OF THE 1987 CONSTITUTION.

D I S C U S S I O N

I.

RESPONDENTS’ ORDERS/DIRECTIVES TO REMOVE OR CAUSE THE REMOVAL OF THE SUBJECT TEAM PATAY TARPAULIN ARE UNCONSTITUTIONAL AND VOID FOR INFRINGING ON PETITIONERS’ RIGHT TO FREEDOM OF EXPRESSION ON THEIR OWN PRIVATE PROPERTY.

29. For almost two years now, the petitioners, the Bishop and the Diocese of Bacolod, have stood firm on their campaign against the RH Law even when it was just a bill being deliberated in Congress;

30. The subject Team Patay Tarpaulins are NOT ELECTORAL CAMPAIGN MATERIALS. The mention of the candidates in the subject second tarpaulin was merely incidental to the campaign of the Bishop and of the Diocese of Bacolod against the RH Law;

31. As such, petitioners respectfully submit that the subject Team Patay Tarpaulins are covered by the BROADER CONSTITUTIONAL GUARANTY OF FREEDOM OF EXPRESSION AND OF CONSCIENCE, and not by the more narrow and limited election laws rules and regulations;

Team Patay Tarpaulins on the Bacolod Cathedral, a private property owned by the Diocese of Bacolod;

33. The RH Law and the candidates and party-lists running in the 2013 National Elections who supported and who opposed its passage into a law are matters of public concern and a legitimate subject of general interest and of discussion;

34. As to the determination of what matters are of public concern, this Honorable Court has held in FRANCISCO I. CHAVEZ v. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, et al., G.R. No. 130716, December 9, 1998, that:

it would seem that the framers of the Constitution have favored the liberal approach. Rev. Fr. Joaquin Bernas, S.J., a member of the Constitutional Commission, observe:

35. In

“The real problem, however, lies in determining what matters are of public concern and what are not. Unwittingly perhaps, by this provision the Constitution might have opened a Pandora's box. For certainly every act of a public officer in the conduct of the governmental process is a matter of public concern. Jurisprudence in fact has said that "public concern," like

"public interest," eludes exact definition and embraces a broad spectrum of subjects which the public may want to

know,

directly

affect their lives or simply because such matters arouse the interest of an

ordinary citizen. (emphasis and underscoring supplied)

either

because

these

ADIONG

v.

COMMISSION

ON

ELECTIONS, G.R.

No.

103956, March 31, 1992,to this Honorable Court held that:

and that it may well include vehement,

unpleasantly

sharp attacks on government and public

York

Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in

Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.

officials.

caustic

sometimes

and

(New

Times

Co.

v.

“We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra) (emphasis and underscoring supplied)

36. The content and the message of the subject Team Patay Tarpaulin plainly relates to broad issues of interest to the community especially to the members of the Catholic community under the jurisdiction of the Diocese of Bacolod;

37. The subject tarpaulin simply conveys the position of the petitioners on the RH Bill and the public officials who supported or opposed it as it gains relevance in the exercise of the people’s right of suffrage in the advent of the 2013 National Elections;

38. The use of a tarpaulin and posting it on the front wall of the Bacolod Cathedral which is owned by the Diocese of Bacolod was petitioners chosen mode and manner of expressing its views and position on this matter of public concern and was designed to reach as broad a public audience as possible;

39. Considering that petitioners’ message as expressed in the

Rights of the 1987 Constitution. More so in this case because it was done in a private property that is owned by the Diocese of Bacolod;

40. Not

being

candidates

or

political

parties,

the

freedom

of

expression curtailed by the questioned prohibition, using the logic of this Honorable Court in ADIONG, supra, is not so much that of the candidate or the political party. As held in ADIONG:

“The regulation strikes at the freedom

of

his

an

individual

to

express

preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a

candidate but

once

the

car owner

agrees

to

have

it

placed

on

his

private

vehicle,

the

expression

becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers

or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property.” (emphasis and underscoring supplied)

41. Moreover, there is no compelling and substantial State interest that is endangered or which will be endangered by the posting of the subject Team Patay Tarpaulin which would justify the infringement of the preferred right of freedom of expression. As held in ADIONG, supra,

Under the clear and present danger rule not only must the danger be

one's mouth or a writing instrument to be stilled:”

II.

RESPONDENTS’ ORDERS/DIRECTIVES TO REMOVE OR CAUSE THE REMOVAL OF THE SUBJECT TEAM PATAY TARPAULIN ARE UNCONSTITUTIONAL AND VOID FOR VIOLATING THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE ENSHRINED IN SECTION 6 OF ARTICLE II OF THE 1987 CONSTITUTION.

42. Petitioners’ position against the RH Law is not only a matter of exercise of its freedom of expression and of conscience but is also a matter of Catholic faith, morals, belief, and of duty;

43. As part of its continued advocacy and obedience to the teaching of the Catholic Church, the Diocese of Bacolod has taken on the issue of the RH Law as part of her mission;

44. In line with what they believe to be their duty in the faith, the petitioners, the Bishop and the Diocese of Bacolod, have declared the RH Law as being anti-life, anti-morals, anti-family, anti-marriage, and contrary to the teachings of the Catholic Church;

45. Consequently, petitioners, the Bishop and the Diocese of Bacolod, have called on its members and followers not to support any candidate who is anti-life, and to support those who are pro-life;

46. Considering 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, the posting of the subject Team Patay Tarpaulin has already gone beyond mere exercise of freedom of expression and of conscience, but also of the right and privilege of the Church to propagate and spread its teachings

47. Section

Constitution

monumentalizes the principle of separation of Church and State. It states:

6

of

the

Article

II

of

the

1987

The separation of Church and State shall be inviolable.

48. The rationale of this principle was explained by this Honorable Court in the case of AUSTRIA v. NLRC FOURTH DIVISION, et al., G.R. No. 124382, August 16, 1999, thus:

“The rationale of the principle of the separation of church and state is summed up in the familiar saying, "Strong fences make good- neighbors." The idea advocated by this principle 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 Ceasar the things that are Ceasar's and unto God the things that are God's." While the state is prohibited from interfering in purely ecclesiastical affairs, the Church is likewise barred

secular

in

from

meddling

purely

matters.” (emphasis and underscoring supplied)

49. Citing Black’s Law Dictionary, Fifth Edition (1979), p. 460, this Honorable Court in AUSTRIA, supra, has defined an ecclesiastical affair as “one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership.”

50. At the core of its advocacy against the RH Bill is the Gospel of

John Paul II says: “The Gospel of life is at the heart of Jesus’ message to be preached with dauntless fidelity to the people every age and culture” (EV 1);

52. The petitioners, the Bishop and the Diocese of Bacolod, believe, as a matter of faith, that in these times when there is a great conflict between a culture of death and a culture of life, the Church should have the courage to proclaim the culture of life for the common good of society. Petitioners believe this to be a matter of faith and duty of every Catholic, more so of the Diocese and her Bishop;

53. Hence, the questioned orders are unpardonable intrusion into the affairs of the Church and constitute serious violations of the principle of separation of Church and State which the State and its officials, including the herein respondents, are bound to respect, observe and hold sacred;

ALLEGATIONS IN SUPPORT FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND INJUNCTION

54. Petitioners incorporate by reference the foregoing allegations as may be material and relevant under this heading;

55. Petitioners

are

being

persecuted

under

respondent’s

orders/directives which are clearly unconstitutional and void;

56. The threatened removal of the subject Team Patay Tarpaulin, unless restrained and enjoined by the Honorable Court would work grave injustice to the petitioners and their right to free expression;

57. With the seriousness and extreme urgency of the matters involved, as well as the grave and irreparable injuries that are sustained and will continue to sustain due to the chilling effect of the questioned orders on the exercise of the right of the petitioners to free expression, there is a need to issue injunctive reliefs to maintain the status quo and allow the petitioners to keep the subject Team Patay Tarpaulin as a matter of free expression of their views and beliefs;

58. In order not to frustrate whatever decision this Honorable Court

conscience, there is need to issue injunctive remedies to restrain further respondents from further proceedings relative to the implementation and execution of patently unconstitutional and void orders while this petition is being heard;

59. Specifically, there is need to issue a temporary restraining order (TRO) upon filing of this petition, and a preliminary injunction pending resolution of this case;

60. There is no other plain, speedy, and adequate remedy to address these pervasive injuries to the petitioners and before

P R A Y E R

WHEREFORE, premises considered, it is the earnest prayer of the petitioners from this Honorable Court that:

1. The Petition be given due course;

2. A Temporary Restraining Order (TRO) and/or a Writ of Preliminary Injunction be issued restraining respondents from further proceedings in enforcing their orders for the removal of the subject Team Patay Tarpaulin;

3. After notice and hearing, a decision be rendered declaring the questioned orders of respondents as UNCONSTITUTIONAL and VOID and permanently restraining the respondents from enforcing any similar orders;

Petitioners further pray for such other relief and remedies as may be deemed just and equitable under the premises.

RESPECTFULLY SUBMITTED.

Bacolod City (for Manila), Philippines, 28 February 2013.

Counsels for Petitioners

RALPH A. SARMIENTO

Door #5 Terra II Bldg.,

Corner C.L. Montelibano Drive & Bugnay Street, Bacolod City Tel./Fax No. +63(34)709-0167 Mobile No. +639209387440 Email: me@attyralph.com

PTR No. 5066761; 01/14/2013; B.C. IBP No. 906151; 01/14/2013; B.C. Roll No. 43073; 05/06/1998; Mla. MCLE Exemption III-445; 05/27/09

RAYMUNDO T. PANDAN, JR.

PTR No. 5037160; 01/02/2013; B.C. IBP No. 889744; 12/26/2012; B.C. Roll of Attorneys No. 36622 MCLE Exemption III - 0000899; 04/07/10

MITCHELLE M. ABELLA

PTR No. 0141533; 01/21/2013; B.C. IBP Lifetime No. 02909; Roll No. 42204 MCLE IV-0007473; 08/28/12

REPUBLIC OF THE PHILIPPINES) BACOLOD CITY, NEGROS OCC. ) S.S. x---------------------------------------------x

VERIFICATION / CERTIFICATION

I, MOST REV. VICENTE M. NAVARRA, of legal age, Filipino, and a resident of Bacolod City, Philippines, after being sworn to in accordance with law, depose and state that:

1. I am one of the petitioners in the above-captioned case and is the Bishop of the petitioner Diocese of Bacolod;

2. I have caused the preparation of the foregoing Petition; I have read the allegations contained therein and I know the contents thereof and they are true and correct based on my own personal knowledge and on authentic records at hand;

3. I further certify that: (a) I and the Diocese of Bacolod which I represent have not theretofore commenced any other action or proceeding involving the same matter in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (b) to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; and (c) if a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I undertake to report such fact within five (5) days therefrom to the court or agency wherein the original pleading and sworn certification contemplated herein have been filed.

IN WITNESS WHEREOF, I have hereunto set my hand this 28 February 2013 at Bacolod City, Philippines.

(Sgd.) MOST REV. VICENTE M. NAVARRA Petitioner/Affiant

SUBSCRIBED AND SWORN to before me this 28 February 2013 at Bacolod City, Philippines by the above-named affiant whom I know personally.

Doc. No. 407;

RALPH A. SARMIENTO

NOTARY PUBLIC Until December 31, 2013

PTR No. 5066761; 01/14/13; B.C. IBP No. 906151; 01/14/13; B.C.