F.

FREEDOM OF EXPRESSION

EN BANC

FRANCISCO CHAVEZ, Petitioner,

G.R. No. 168338 Present: PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, and LEONARDO-DE CASTRO, JJ. Promulgated: February 15, 2008

- versus -

RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), Respondents.

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

DECISION
PUNO, C.J.:

A. Precis In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3]and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. B. The Facts 1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a highranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7] 2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8]

3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.[9] 4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10] 5. On June 11, 2005, the NTC issued this press release: [11]
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS xxx xxx xxx

Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the

attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators.

6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: [12] NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same.

C. The Petition

Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.[13] Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern,[14] petitioner specifically asked this Court: [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. [15] Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate the telecommunications industry. [17] It was also stressed that most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. [18] D. THE PROCEDURAL THRESHOLD: LEGAL STANDING To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forwardneither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions. [19] But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. [20]Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press. But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and contentbased regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to

call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

Republic of the Philippines SUPREME COURT Manila

EN BANC

ELISEO F. SORIANO, Petitioner, - versus MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, Respondents. x-------------------------------------------x ELISEO F. SORIANO,

G.R. No. 164785

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, VELASCO, JR.,

Petitioner, - versus MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINOGAVINO,NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants before the MTRCB, Respondents.

NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, and BERSAMIN, JJ.

G.R. No. 165636

Promulgated:

April 29, 2009

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DECISION

VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to nullify and set aside an order and a decision of the Movie and Television Review and Classification Board (MTRCB) in connection with certain utterances he made in his television show,Ang Dating Daan.

Facts of the Case

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.[1] x x x

Two days after, before the MTRCB, separate but almost identical affidavitcomplaints were lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC),[2] against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in petitioners remark, was then a minister of INC and a regular host of the TV program Ang Tamang Daan.[3] Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan.[4]

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004, preventively suspended the showing ofAng Dating Daan program for 20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure.[5] The same order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order, praying that Chairperson Consoliza P. Laguardia and two other

members of the adjudication board recuse themselves from hearing the case.[6] Two days after, however, petitioner sought to withdraw[7]his motion for reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition,[8] docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his program, Ang Dating Daan.

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby exonerated for lack of evidence.

SO ORDERED.[9]

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x

IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS; (B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH; (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW; (D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND (E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH[11]

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive suspension, although its implementability had already been overtaken and veritably been rendered moot by the equally assailed September 27, 2004 decision.

It is petitioners threshold posture that the preventive suspension imposed against him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive suspension.

Petitioners contention is untenable.

Administrative agencies have powers and functions which may be administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by statute.[12] They have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law.[13] And in determining whether an agency has certain powers, the inquiry should be from the law itself. But once ascertained as existing, the authority given should be liberally construed.[14]

A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems naturally from, and is necessary for the exercise of, its power of regulation and supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.The BOARD shall functions, powers and duties:

have the following

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x x x 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 wrong or crime such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television.

Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied from such mandate. Any other construal would render its power to regulate, supervise, or discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an administrative investigation.[15] And the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints and, during such investigation, to preventively suspend the person subject of the complaint.[16]

To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in order to prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board may issue a Preventive Suspension Order mandating the preventive x x x suspension of the permit/permits involved, and/or closure of the x x x television network, cable TV station x x x provided that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority under the law. Far from it. The preventive suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCBs duty of regulating or supervising television programs, pending a determination of

whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. Indeed, the power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied powers are those that can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the enabling act.[17] As we held in Angara v. Electoral Commission, when a general grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one or the performance of the other is also conferred by necessary implication.[18] Clearly, the power to impose preventive suspension pending investigation is one of the implied or inherent powers of MTRCB.

We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCBs authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law makes specific reference to the closure of a television network, the suspension of a television program is a far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions petitioner envisages.

Just as untenable is petitioners argument on the nullity of the preventive suspension order on the ground of lack of hearing. As it were, the MTRCB handed

out the assailed order after petitioner, in response to a written notice, appeared before that Board for a hearing on private respondents complaint. No less than petitioner admitted that the order was issued after the adjournment of the hearing,[19] proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue *a+ny time during the pendency of the case. In this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD 1986[20] and of administrative complaints that had been filed against him for such violation.[21]

At any event, that preventive suspension can validly be meted out even without a hearing.[22]

Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC ministers.

Petitioners position does not persuade. The equal protection clause demands that all persons subject to legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and liabilities imposed.[23] It guards against undue favor and individual privilege as well as hostile discrimination.[24] Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use language similar to that which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his critics, this does not become a deprivation of the equal protection guarantee. The Court need not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too different to even consider whether or not there is a prima facie indication of oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech, adding that words like putang babae were said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioners utterances in question can come within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:

No law shall be made respecting the establishment of a 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.

There is nothing in petitioners statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. Even petitioners attempts to place his words in context show that he was moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language used in retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that petitioner had descended to the level of name-calling and foullanguage discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted for the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and expression and an impermissible prior restraint. The main issue tendered respecting the adverted violation and the arguments holding such issue dovetails with those challenging the three-month suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.

G.R. No. 165636 Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three months on the main ground that the decision violates, apart from his religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:

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 grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and principles underlying the freedom of speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the broad protection of the free speech and expression clause.[25] Each method though, because of its dissimilar presence in the lives of people and accessibility to children, tends to present its own problems in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of protection.[26]Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.[27] The freedom of expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public interests, some forms of speech not being protected. As has been held, the limits of the freedom of expression are reached when the expression touches upon matters of essentially private concern.[28] In the oft-quoted expression of Justice Holmes, the constitutional guarantee obviously was not intended to give immunity for every possible use of language.[29] From Lucas v. Royo comes this line: *T+he freedom to express ones sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any sentiments must be expressed within the proper forum and with proper regard for the rights of others.[30]

Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain well-defined and narrowly limited classes of speech that are harmful, the prevention and punishment of which has never been thought to raise any Constitutional problems. In net effect, some forms of speech are not protected by the Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul of the freedom of speech clause.[32] A speech would fall under the unprotected type if the utterances involved are no essential part of any exposition of ideas, and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.[33] Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present danger rule or the balancing-of-interest test, they being essentially

modes of weighing competing values,[34] or, with like effect, determining which of the clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security.

The Court finds that petitioners statement can be treated as obscene, at least with respect to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless stated the ensuing observations on the matter:

There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is patently offensive. x x x What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion.[35]

Following the contextual lessons of the cited case of Miller v. California,[36] a patently offensive utterance would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV program that is rated G or for general viewership, and in a time slot that would likely reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term putang babae means a female prostitute, a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing the context within which it was used. Petitioner further used the terms, ang gumagana lang doon yung ibaba,making reference to the female sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase in context. They may be inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of the words used, young minds, without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if they take these words literally and use them in their own speech or form their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioners words, when

speaking of the average person in the test for obscenity, we are speaking of the average child, not the average adult. The average child may not have the adults grasp of figures of speech, and may lack the understanding that language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In this sense, we find petitioners utterances obscene and not entitled to protection under the umbrella of freedom of speech.

Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made in a medium easily accessible to children. With respect to the young minds, said utterances are to be treated as unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal Communications [37] Commission (FCC) v. Pacifica Foundation, a 1978 American landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr.[38] andChavez v. Gonzales,[39] is a rich source of persuasive lessons. Foremost of these relates to indecent speech without prurient appeal component coming under the category of protected speech depending on the context within which it was made, irresistibly suggesting that, within a particular context, such indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered filthy words[40] earlier recorded in a monologue by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the complaint of a man who heard the prerecorded monologue while driving with his son, FCC declared the language used as patently offensive and indecent under a prohibiting law, though not

necessarily obscene. FCC added, however, that its declaratory order was issued in a special factual context, referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting on the question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened to add that the monologue would be protected speech in other contexts, albeit it did not expound and identify a compelling state interest in putting FCCs content-based regulatory action under scrutiny.

The Court in Chavez[41] elucidated on the distinction between regulation or restriction of protected speech that is content-based and that which is contentneutral. A content-based restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the expression under well-defined standards tailored to serve a compelling state interest, without restraint on the message of the expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises was, in one perspective, permissible restriction. We make this disposition against the backdrop of the following interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak,[42] easily reaches every home where there is a set [and where] [c]hildren will likely be among the avid viewers of the programs therein shown; second, the broadcast was aired at the time of the day when there was a reasonable risk that children might be in the audience; and third, petitioner uttered his speech on a G or for general patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is *s+uitable for all ages, meaning that the material for television x x x in the judgment of the BOARD, does not contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision. The words petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is categorized as indecent, as in

petitioners utterances on a general-patronage rated TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography,[43] false or misleading advertisement,[44] advocacy of imminent lawless action, and expression endangering national security. But this list is not, as some members of the Court would submit, exclusive or carved in stone. Without going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule against censorship in the past, this particular case constitutes yet another exception, another instance of unprotected speech, created by the necessity of protecting the welfare of our children. As unprotected speech, petitioners utterances can be subjected to restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his utterances must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent and such danger must be grave and imminent.[45]

Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil which the government has the power to prohibit.[46] Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when necessary to prevent grave and immediate danger to interests which the government may lawfully protect. As it were, said doctrine evolved in the context of prosecutions for rebellion and other crimes involving the overthrow of government.[47] It was originally designed to determine the latitude which should be given to speech that espouses anti-government

action, or to have serious and substantial deleterious consequences on the security and public order of the community.[48] The clear and present danger rule has been applied to this jurisdiction.[49] As a standard of limitation on free speech and press, however, the clear and present danger test is not a magic incantation that wipes out all problems and does away with analysis and judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant from liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster.[50] As we observed in Eastern Broadcasting Corporation, the clear and present danger test does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.[51]

To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in terms of proximity and degree the Court, however, in several casesAyer Productions v. Capulong[52] and Gonzales v. COMELEC,[53] applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation,[54] then the balancing of interests test can be applied.

The Court explained also in Gonzales v. COMELEC the balancing of interests test:

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. x x x We must, therefore, undertake the delicate and difficult task x x x to weigh the circumstances

and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values and individual interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the balancing-of-interests test which has found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional power restricting the individuals freedom, and the social importance and value of the freedom so restricted, are to be judged in the concrete, not on the basis of abstractions, a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured by the legislationthe reference here is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom.[55]

This balancing of interest test, to borrow from Professor Kauper,[56] rests on the theory that it is the courts function in a case before it when it finds public interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature that it

outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests.[57] To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow. In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote the development and welfare of the youth.

After a careful examination of the factual milieu and the arguments raised by petitioner in support of his claim to free speech, the Court rules that the governments interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioners prayer to continue as program host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide protection to the youth against illegal or improper activities which may prejudice their general well-being. The Article on youth, approved on second reading by the Constitutional Commission, explained that the State shall extend social protection to minors against all forms of

neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or other forms of discrimination.[58]

Indisputably, the State has a compelling interest in extending social protection to minors against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in helping parents, through regulatory mechanisms, protect their childrens minds from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of nation-building.[59] In the same way, the State is mandated to support parents in the rearing of the youth for civic efficiency and the development of moral character.[60]

Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was easily accessible to the children. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the States mandate to protect and care for them, as parens patriae,[61] constitute a substantial and compelling government interest in regulating petitioners utterances in TV broadcast as provided in PD 1986.

FCC explains the duty of the government to act as parens patriae to protect the children who, because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens written message, *Fuck the Draft+, might have been incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs 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 that the governments 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.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.[62]

The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on the following considerations: (1) the use of television with its unique accessibility to children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction. x x x The *FFCs+ decision rested entirely on a nuisance rationale under which context is all important.

The concept requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The content of the program in which the language is used will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard. We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate and prevent should such action served and further compelling state interests. One who utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the parlor. Public interest would be served if the pig is reasonably restrained or even removed from the parlor.

Ergo, petitioners offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that, however, includes prior restraint, albeit indirectly.

After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast

censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which requires prior permit or license before showing a motion picture or broadcasting a TV program. The Board can classify movies and television programs and can cancel permits for exhibition of films or television broadcast.

The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even religious programs, was upheld inIglesia Ni Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:

We thus reject petitioners postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup inSotto vs. Ruiz, viz:

The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its character.[63]

Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and television programs or parts of either are fit for public consumption. It decides what movies are immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, and what tend to incite subversion, insurrection, rebellion or sedition, or tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities, etc. Moreover, its decisions are executory unless stopped by a court.[64]

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the power of review and prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became a necessary evil with the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each others signals. In this scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior restraintdenial of permit or subsequent punishment, like suspension or cancellation of permit, among others.

The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daanas a permit was already issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent punishment

for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause. And the imposition is separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioners exercise of his freedom of speech via television, but for the indecent contents of his utterances in a G rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry. Neither can petitioners virtual inability to speak in his program during the period of suspension be plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper context, the suspension sought to penalize past speech made on prime-time G rated TV program; it does not bar future speech of petitioner in other television programs; it is a permissible subsequent administrative sanction; it should not be confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB,[66] sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a G rated program is not

acceptable. As made clear in Eastern Broadcasting Corporation, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate, which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts should be subject to some form of regulation, considering the ease with which they can be accessed, and violations of the regulations must be met with appropriate and proportional disciplinary action. The suspension of a violating television program would be a sufficient punishment and serve as a deterrent for those responsible. The prevention of the broadcast of petitioners television program is justified, and does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect these times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of religion. The Court has earlier adequately explained why petitioners undue reliance on the religious freedom cannot lend justification, let alone an exempting dimension to his licentious utterances in his program. The Court sees no need to address anew the repetitive arguments on religious freedom. As earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no way a religious speech. Parenthetically, petitioners attempt to characterize his speech as a legitimate defense of his religion fails miserably. He tries to place his words in perspective, arguing evidently as an afterthought that this was his method of refuting the alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word simply came out as profane language, without any warning or guidance for undiscerning ears.

As to petitioners other argument about having been denied due process and equal protection of the law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is no need to further delve into the fact that petitioner was afforded due process when he attended

the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated against in the MTRCB proceedings.

Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not provide for the range of imposable penalties that may be applied with respect to violations of the provisions of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following wise:

It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not delegate its legislative power to the two other branches of the government, subject to the exception that local governments may over local affairs participate in its exercise. What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal them; the test is the completeness of the statute in all its term and provisions when it leaves the hands of the legislature. To determine whether or not there is an undue delegation of legislative power, the inquiry must be directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. For a complex economy, that may indeed be the only way in which the legislative process can go forward. A distinction has rightfully been made between delegation of power to make laws which necessarily involves a discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or discretion as to its execution to be exercised under and in pursuance of the law, to which no valid objection can be made. The Constitution is thus not to be regarded as denying the legislature the necessary resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its

boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations.[67]

Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the law.

Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of power and functions, is charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity materials to the end that no such objectionable pictures, programs, and materials shall be exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB to exercise such powers and functions as may be necessary or incidental to the attainment of the purpose and objectives of *the law+. As earlier explained, the investiture of supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize the supervised or the regulated as may be proportionate to the offense committed, charged, and proved. As the Court said in Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute does not specify the particular method to be

followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable method to carry out its function.[68]

Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive action for violation of the law sought to be enforced. And would it not be logical too to say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides that agency with the power *to+ promulgate such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate filing of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures, television programs, and related promotional materials shall be penalized with suspension or cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and other administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached without prejudice to the power of the Board to amend it when the need arises. In the meantime the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The

MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion pictures, television programs, and publicity materials applying contemporary Filipino cultural values as standard, and, from there, determine whether these audio and video materials are objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] x x x and apply the sanctions it deems proper. The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute.[69] The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the non-delegation of legislative powers.[70] Administrative regulations or subordinate legislation calculated to promote the public interest are necessary because of the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law.[71] Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of the offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent with its mandate to effectively and efficiently regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation

beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within the decrees penal or disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged with violating the statute and for whom the penalty is sought. Thus, the MTRCBs decision in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision must be modified. The suspension should cover only the television program on which petitioner appeared and uttered the offensive and obscene language, which sanction is what the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on television without adverse consequences, under the guise of free speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say any act that restrains speech should be greeted with furrowed brows is not to say that any act that restrains or regulates speech or expression is per se invalid. This only recognizes the importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby AFFIRMED with theMODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby exonerated for lack of evidence.

Costs against petitioner.

SO ORDERED.

PRESBITERO J. VELASCO, JR. Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE Associate Justice CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN 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 case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

Rollo (G.R. No. 165636), p. 375. Id. at 923. [3] Id. at 924, Private Respondents Memorandum. [4] Id. at 110. [5] Id. at 112-113, Rules of Procedure in the Conduct of Hearing for Violations of PD 1986 and the IRR. [6] Id. at 141-151. [7] Id. at 152-154. [8] Id. at 166-252. [9] Id. at 378. [10] Id. at 182. [11] Id. at 46. [12] Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747. [13] Pimentel v. COMELEC, Nos. L-53581-83, December 19, 1980, 101 SCRA 769. [14] Agpalo, ADMINISTRATIVE LAW (2005); citing Matienzon v. Abellera, G.R. No. 77632, June 8, 1988, 162 SCRA 1. [15] Lastimoso v. Vasquez, G.R. No. 116801, April 6, 1995, 243 SCRA 497. [16] Alonzo v. Capulong, G.R. No. 110590, May 10, 1995, 244 SCRA 80; Beja v. Court of Appeals, G.R. No. 97149, March 31, 1992, 207 SCRA 689. [17] Chavez v. National Housing Authority, G.R. No. 164527, August 15, 2007, 530 SCRA 235, 295-296; citing Azarcon, supra note 12, at 761; Radio Communications of the Philippines, Inc. v. Santiago , Nos. L-29236 & 29247, August 21, 1974, 58 SCRA 493, 497. [18] 63 Phil. 139, 177 (1936). [19] Rollo (G.R. No. 164785), p. 12. [20] Id. at 94. [21] Id. at 95. [22] Beja, supra note 16; Espiritu v. Melgar, G.R. No. 100874, February 13, 1992, 206 SCRA 256. [23] 1 De Leon, PHILIPPINE CONSTITUTIONAL LAW 274 (2003). [24] Tiu v. Guingona, G.R. No. 127410, January 20, 1999, 301 SCRA 278; citing Ichong v. Hernandez, 101 Phil. 1155 (1957) and other cases. [25] US v. Paramount Pictures, 334 U.S. 131; Eastern Broadcasting Corporation v. Dans, Jr., No. L-59329, July 19, 1985, 137 SCRA 628. [26] Eastern Broadcasting Corporation v. Dans, Jr., supra note 25; citing FCC v. Pacifica Foundation, 438 U.S. 726; Gonzales v. Kalaw Katigbak, No. L-69500, July 22, 1985, 137 SCRA 717. [27] J.G. Bernas, S.J., THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 205 (1996). [28] Lagunsad v. Soto vda. De Gonzales, No. L-32066, August 6, 1979, 92 SCRA 476. [29] Trohwerk v. United States, 249 U.S. 204 (1919); cited in Bernas, supra at 218. [30] G.R. No. 136185, October 30, 2000, 344 SCRA 481, 490. [31] 315 U.S. 568 (1942). [32] Agpalo, PHILIPPINE CONSTITUTIONAL LAW 358 (2006). [33] Chaplinsky, supra note 31; cited in Bernas, supra note 27, at 248. [34] Bernas, supra note 27, at 248. [35] G.R. No. 159751, December 6, 2006, 510 SCRA 351, 360-361. [36] 413 U.S. 15. [37] 438 U.S. 726. [38] Supra note 25. [39] G.R. No. 168338, February 15, 2008, 545 SCRA 441. [40] Shit, piss, fuck, tits, etc. [41] Supra note 39. [42] Supra note 26. [43] Gonzales v. Kalaw Katigbak, supra. [44] Pharmaceutical and Health Care Association of the Philippines v. Health Secretary Francisco T. Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265. [45] Bayan v. Ermita, G.R. No. 169838, April 25, 2006, 488 SCRA 226.
[2] [46]

[1]

16A Am Jur. 2d Constitutional Law Sec. 493; Schenck v. United States, 249 U.S. 47.

Bernas, supra note 27, at 219-220. Gonzales v. COMELEC, No. L-27833, April 18, 1969, 27 SCRA 835. [49] ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, January 28, 2000, 323 SCRA 811; Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712. [50] Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707 & 80578, February 1, 1989, 170 SCRA 1. [51] Supra note 25, at 635. [52] No. L-82380, April 29, 1988, 160 SCRA 861. [53] Supra note 48. [54] Supra at 898. [55] Supra at 899-900.
[48]

[47]

Kauper, CIVIL LIBERTIES AND THE CONSTITUTION 113 (1966); cited in Gonzales v. COMELEC, supra note 48; also cited in J.G. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY (2003). [57] Id. [58] Bernas, supra note 27, at 81. [59] CONSTITUTION, Art. II, Sec. 13. [60] Id., id., Sec. 12. [61] Id. [62] Supra note 26, at 729. [63] G.R. No. 119673, July 26, 1996, 259 SCRA 529, 544, 552. [64] Supra note 56, at 235. [65] G.R. No. 155282, January 17, 2005, 448 SCRA 575. [66] Supra note 65. [67] No. L-32096, October 24, 1970, 35 SCRA 481, 496-497. [68] Supra note 17; citing Angara v. Electoral Commission, 63 Phil. 139 (1936); Provident Tree Farms, Inc. v. Batario, Jr., G.R. No. 92285, March 28, 1994, 231 SCRA 463.
[69] [70]

[56]

People v. Maceren, No. L-32166, October 18, 1977, 79 SCRA 450, 458. Id. [71] Id.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 170643 September 8, 2006

JEJOMAR C. BINAY, for and in behalf of his minor daughter, JOANNA* MARIE BIANCA S. BINAY,petitioner, vs. THE SECRETARY OF JUSTICE, GENIVI V. FACTAO and VICENTE G. TIROL, respondents. DECISION YNARES-SANTIAGO, J.: This petition for review assails the November 22, 2004 Decision1 of the Court of Appeals in CA-G.R. SP No. 75989, which affirmed the Resolutions dated July 2, 20022 and January 8, 20033 of the Secretary of Justice reversing the Makati City Prosecutors finding of probable cause against private respondents and ordering the withdrawal of the information for libel filed in court against them, as well as the November 25, 2005 Resolution,4denying petitioners** motion for reconsideration. In the April 15-21, 2001 issue of Pinoy Times Special Edition, an article entitled "ALYAS ERAP JR." was published regarding the alleged extravagant lifestyle of the Binays and the assets that they acquired while in public office. Paragraph 25 of the article reads: Si Joanne Marie Bianca, 13 ang sinasabing ampong anak ng mga Binay, ay bumibili ng panty na nagkakahalaga ng P1,000 ang isa, ayon sa isang writer ni Binay. Magarbo ang pamumuhay ng batang ito dahil naspoiled umano ng kanyang ama. Based on this article, Elenita S. Binay, mother of the minor Joanna Marie Bianca,5 filed a complaint6 for libel against private respondents Vicente G. Tirol as publisher, and Genivi V. Factao as writer of the article, with the Office of the City Prosecutor of Makati. The pertinent portions of the complaint read: xxxx 5. GENIVI V. FACTAO, as writer of the said article, voluntarily, illegally, and with the object to insinuate and made it understood, and was in effect understood and interpreted by the public who read it, that the young lady referred to therein can be no other than my daughter Joanne, in this manner transmitting maliciously and intentionally to the public the impression that Joanne is a spoiled, spendthrift brat who would not mind or care to spend P1,000 for her underwear, all as already stated, with the object of destroying her reputation and discrediting and ridiculing her before the bar of public opinion. 6. The said article, for whatever its avowed purpose may be, is clearly aimed at scurrilously attacking my husband Jejomar C. Binay. In which case, the insinuations directed at Joanne are clearly pointless and was done only for purposes of exposing Joanne to public contempt.

6.1. That the said article should specifically focus in on Joannes panty is a clear and malicious invasion of her privacy and calculated to heap scorn and ridicule upon her. On top of this, there is no connection whatsoever to her being an adopted child despite which this was needlessly and maliciously highlighted.7 Joanna also submitted an affidavit8 where she claimed that: 4. The article was completely unmindful of the hurt and anguish I felt after it needlessly and maliciously highlighted my being an adopted daughter. Furthermore, the article is a blatant lie. I have never in my life bought an underwear costing P1,000.00 or more. On the contrary, I have always maintained to keep a simple and modest life as it is how my parents had brought me up. The questioned article has no valid object except to destroy my reputation and to discredit and to bring ridicule upon me before my peers and that of the public. Private respondents did not file their counter-affidavits. The City Prosecutor found a prima facie case for libel and recommended the filing of information against private respondents. The case9 was filed with the Regional Trial Court of Makati City. Alleging that they did not receive the subpoena and copy of the complaint, private respondents filed an omnibus motion to re-open the preliminary investigation. The City Prosecutor, however, denied private respondents motion for reconsideration,10 thus they filed a petition for review11 with the Secretary of Justice. On July 2, 2002, then Acting Justice Secretary Merceditas N. Gutierrez12 reversed the City Prosecutors findings and directed the withdrawal of the information filed in court.13 Elenitas motion for reconsideration was denied in the Resolution14 dated January 8, 2003, hence a petition for certiorari and prohibition15 was filed with the Court of Appeals which rendered the assailed Decision dated November 22, 2004, denying the petition and sustaining the Justice Secretarys ruling that there was nothing libelous in the subject article. The dispositive portion of the Decision reads: WHEREFORE, the present petition is dismissed for lack of merit and the Resolutions dated July 2, 2002 and January 8, 2003 of public respondent are affirmed in toto. SO ORDERED.16 The Court of Appeals also denied Elenitas motion for reconsideration, hence this petition, raising the following issues: I. The CA erred in not holding that public respondent acted with grave abuse of discretion tantamount to lack or excess of jurisdiction. II. The CA erred in not holding that the public respondent gravely abused its discretion for not abiding by the ruling in Sazon vs. Court of Appeals which states that an attack upon the private character of a public officer on matters which are not related to the discharge of his official functions may be libelous. III. The CA erred in not holding that there is probable cause to indict private respondents for the crime of libel and that they are probably guilty thereof.17

In a resolution dated March 20, 2006, the Court granted the motion of Jejomar C. Binay to replace his wife, Elenita S. Binay, as petitioner and representative of their minor daughter Joanna.18 The issue to be resolved is whether there is prima facie evidence showing that the subject article was libelous. Petitioner claims that the article is defamatory as it tends to, if not actually, injure Joannas reputation and diminish the esteem, respect, and goodwill that others have of her. Petitioner alleges that there is no good intention or justifiable motive in publishing Joannas status as an adopted child which is essentially a private concern and the purchase of an expensive intimate apparel, but to ridicule and to induce readers to lower their perception of Joanna. On the other hand, private respondents allege that they did not harp on Joannas status as an adopted child as the same was mentioned only once in the article; that they did not intend to injure her reputation or diminish her self-esteem; that they referred to the price of the underwear not for the purpose of maligning her or to make her look frivolous in the publics eyes, but to show that petitioner and his family lead lavish and extravagant lives; and that this matter is within the realm of public interest given that petitioner is an aspirant to a public office while his wife is an incumbent public official. We grant the petition. Under Article 353 of the Revised Penal Code, libel is defined as "a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead." Its elements are as follows: (a) an imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and (d) the existence of malice.19 Thus, for an imputation to be libelous, it must be defamatory, malicious, published, and the victim is identifiable.20 The elements of publication and identity of the person defamed are present in this case. Thus, in resolving the issue at hand, we limit our discussion on whether paragraph 25 of the subject article contains the two other elements of libel, to wit: (a) imputation of a discreditable act or condition to another, i.e., whether the paragraph is defamatory; and (b) existence of malice. In MVRS Pub. Inc. v. Islamic Da'wah Council of the Phils., Inc.,21 we defined defamatory language in this wise: Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff. It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute. Defamation is an invasion of arelational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff. It must be stressed that words which are merely insulting are not actionable as libel or slander per se, and mere words of general abuse however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute a basis for an action for defamation in the absence of an allegation for special damages. The fact that the

language is offensive to the plaintiff does not make it actionable by itself. (Emphasis added) In determining whether a statement is defamatory, the words used are construed in their entirety and taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.22 Tested against the foregoing, we find that there is prima facie showing that paragraph 25 of the subject article is defamatory. It is opprobrious, ill-natured, and vexatious as it has absolutely nothing to do with petitioner's qualification as a mayoralty candidate or as a public figure. It appears that private respondents only purpose in focusing on Joannas status as an adopted child and her alleged extravagant purchases was to malign her before the public and to bring her into disrepute. This is a clear and simple invasion of her privacy. In Buatis, Jr. v. People,23 the Court found libelous a letter addressed to a lawyer for using words such as "lousy," "inutile," "carabao English," "stupidity," and "satan." It cast aspersion on the character, integrity and reputation of respondent as a lawyer and exposed him to public ridicule. Evidence aliunde was found unnecessary to prove libel. In the same manner, we need not require any evidence aliunde to prove that paragraph 25 is defamatory. It has exposed Joanna to the public at large as a spoiled and spendthrift adopted daughter and a compulsive buyer who has no qualms buying expensive lingerie. Private respondents argue that paragraph 25 constitutes privileged communication because it was a fair comment on the fitness of petitioner to run for public office, particularly on his lifestyle and that of his family. As such, malice cannot be presumed. It is now petitioners burden to prove malice in fact. We are not convinced. In the first place, paragraph 25 does not qualify as a conditionally or qualifiedly privileged communication, which Article 354 of the Revised Penal Code limits to the following instances: (1) A private communication made by a 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 act performed by public officers in the exercise of their functions. To qualify under the first category of a conditionally or qualifiedly privileged communication, paragraph 25 must fulfill the following elements: (1) the person who made the communication had a legal, moral, or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; (2) the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; and (3) the statements in the communication are made in good faith and without malice. 24 Whichever way we view it, we cannot discern a legal, moral, or social duty in publishing Joanna's status as an adopted daughter. Neither is there any public interest respecting her purchases of panties worth P1,000.00. Whether she indeed bought those panties is not something that the public can afford any protection against. With this backdrop, it is obvious that private respondents' only motive in inserting paragraph 25 in the subject article is to embarrass Joanna before the reading public.

In addition, the claim that paragraph 25 constitutes privileged communication is a matter of defense, 25 which is can only be proved in a full-blown trial. It is elementary that "a preliminary investigation is not the occasion for the full and exhaustive display of the parties evidence. It is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and the accused is probably guilty thereof."26 Moreover, under Article 354 of the Revised Penal Code, 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. It is thus incumbent upon private respondents to prove that "good intention and justifiable motive" attended the publication of the subject article. WHEREFORE, the petition is GRANTED. The Court of Appeals Decision in CA-G.R. SP No. 75989 dated November 22, 2004, upholding the Justice Secretarys Resolutions dated July 2, 2002 and January 8, 2003, ordering the withdrawal of the information filed against private respondents Genivi V. Factao and Vicente G. Tirol and the Resolution dated November 25, 2005, denying petitioners motion for reconsideration, are REVERSED AND SET ASIDE. The City Prosecutor of Makati City is ORDERED to continue and proceed with the case for libel against private respondents Vicente G. Tirol and Genivi V. Factao. SO ORDERED. Panganiban, Austria-Martinez, Callejo, Sr., Chico-Nazario, , J.J., concur.

Footnotes
*

Also spelled as Joanne in other parts of the rollo.

Rollo, pp. 136-145. Penned by Associate Justice Fernanda Lampas Peralta and concurred in by Associate Justices Delilah Vidallon-Magtolis and Conrado M. Vasquez, Jr.
2

Id. at 107-109. Id. at 110-111. Id. at 159-165.

In the proceedings before the Prosecutors office, Department of Justice, and the Court of Appeals, Joanna was represented by her mother, Elenita S. Binay. It was only before this Court that Jejomar C. Binay was substituted as petitioner.
** 5

Id. at 66. Elenita Binay filed the complaint under Article 220 of the Civil Code in relation to Section 5, Rule 3, Rules of Court.
6

Id. at 66-67; docketed as I.S. No. 01-F-11158-59. Id.

Id. at 68. Docketed as Crim. Case No. 01-1950. Id. at 83-84. Id. at 85-95. She now heads the Office of the Ombudsman. Rollo, pp. 96-98. Id. at 110. Id. at 112-134. Id. at 17. Id. at 43. Id. at 166.

10

11

12

13

14

15

16

17

18

19

Guingguing v. Court of Appeals, G.R. No. 128959, September 30, 2005, 471 SCRA 196, 206.
20

Sazon v. Court of Appeals, 325 Phil. 1053, 1062 (1996); Ledesma v. Court of Appeals, 344 Phil. 207, 236-237 (1997).
21

G.R. No. 135306, 444 Phil. 230, 241 (2003). Novicio v. Aggabao, 463 Phil. 510, 516 (2003). G.R. No. 142509, 24 March 2006,.

22

23

24

Brillante v. Court of Appeals, G.R. Nos. 118757 & 121571, October 19, 2004, 440 SCRA 541, 569.
25

People v. Gomez, No. L-32815, June 25, 1980, 98 SCRA 181. Baytan v. COMELEC, 444 Phil. 812, 819-820 (2003).

26

SECOND DIVISION
GMA NETWORK, INC. (formerly known as REPUBLIC BROADCASTING SYSTEM, INC.) and REY VIDAL, Petitioners, G.R. No. 146848 Present: PUNO, J., Chairperson, SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and GARCIA,

- versus -

JESUS G. BUSTOS, M.D., Promulgated: TEODORA R. OCAMPO, M.D., VICTOR V. BUENCAMINO, M.D., CESAR F. VILLAFUERTE, M.D., October 17, 2006 ARTEMIO T. ORDINARIO, M.D., and VIRGILIO C. BASILIO, M.D., Respondents. x-------------------------------------------------------------------------------------x

DECISION GARCIA, J.:

Assailed and sought to be set aside in this petition for review[1] under Rule 45 of the Rules of Court is the decision[2] dated January 25, 2001 of the Court of Appeals (CA) in CA-G.R. CV No. 52240 which reversed and set aside an earlier decision[3] of the Regional Trial Court (RTC) of Makati City, Branch 64, in Civil Case No. 88-1952, an action for damages thereat commenced by the herein respondents Jesus G. Bustos, Teodora R. Ocampo, Victor V. Buencamino, Cesar F. Villafuerte, Artemio T. Ordinario and Virgilio C. Basilio, all physicians by profession and the former chairman and members, respectively, of the Board of Medicine, against the herein petitioners GMA Network, Inc. (formerly Republic Broadcasting System, Inc.) and Rey Vidal.

The facts: In August 1987, the Board of Medicine of the Professional Regulation Commission (PRC) conducted the physicians licensure examinations. Out of the total two thousand eight hundred thirty-five (2,835) examinees who took the examinations, nine hundred forty-one (941) failed. On February 10, 1988, a certain Abello and over two hundred other unsuccessful examinees filed a Petition for Mandamus before the RTC of Manila to compel the PRC and the board of medical examiners to re-check and reevaluate the test papers. As alleged, mistakes in the counting of the total scores and erroneous checking of answers to test questions vitiated the results of the examinations. As news writer and reporter of petitioner GMA Network, Inc. assigned to gather news from courts, among other beats, its co-petitioner Rey Vidal covered the filing of the mandamus petition. After securing a copy of the petition, Vidal composed and narrated the news coverage for the ten oclock evening news edition of GMAs Channel 7 Headline News. The text of the news report,[4] as drafted and narrated by Vidal and which GMA Network, Inc. aired and televised on February 10, 1988, runs:
Some 227 examinees in the last August Physician Licensure Examinations today asked the Manila [RTC] to compel the [PRC] and the Medical Board of Examiners to recheck the August 1987 test papers. The petitioners [examinees] today went to the Presiding Judge to also ask for a special raffling of the case considering that the next physicians examinations have been scheduled for February [1988] . They said that the gross, massive, haphazard, whimsical and capricious checking that must have been going on for years should now be stopped once and for all. The last examination was conducted last August at the PRC central offices, the Far Eastern University and the Araullo High School, the exams on multiple choice or matching type involve 12 subjects including general medicine, biochemistry, surgery and obstetrics and gynecology. 21 schools participated in the examination represented by some 2,835 medical student graduates, 1,894 passed and 141 failed.

The results of the exams were released December 9 and were published the following day in metropolitan papers last years (sic). A group of failing examinees enlisted the help of the Offices of the President and the Vice President and as a result were allowed by PRC to obtain the official set of test questions. The students then researched and produced the key answers to the key questions. The petitioners were also allowed to see their own test papers, most of them copying the papers . With these copies, they were able to match the scores and the correct answers in the examinations. They found that the errors in checking were so material that they actually lowered the scores that formed the individual ratings of the examinees in the various subjects. Examples of the discrepancies are to be found in identical answers being rated as incorrect in one examinees paper but correct in another. There is also the case of two different answers being rated as correct. There are indications of wrong counting of total scores per subject so that the totals are either short by two up to four points. Finally, there are raw scores that have been transmuted incorrectly so that a passing score was rendered a failure. The petitioners said that the haphazard and whimsical and capricious checking should now be stopped once and for all. They said that the nine years formal studies and the one year internship not to mention the expenses and the blood, sweat, and tears of the students and their families will have been rendered nugatory. The petitioners also noted that Com. Francia had promised last January 12 to rectify the errors in the checking and yet they have not received the appropriate action promised whereas the next exams have been set for Feb. 20, 21, 27 and 28. (Words in bracket added.)

Stung by what they claim to be a false, malicious and one-sided report filed and narrated by a remorseless reporter, the herein respondents instituted on September 21, 1988 with the RTC of Makati City a damage suit against Vidal and GMA Network, Inc., then known as the Republic Broadcasting System, Inc. In their complaint,[5] docketed as Civil Case No. 88-1952 and raffled to Branch 64 of the court, the respondents, as plaintiffs a quo, alleged, among other things, that then defendants Vidal and GMA Network, Inc., in reckless disregard for the truth, defamed them by word of mouth and simultaneous visual presentation on GMA Network, Inc.s Channel 7. They added that, as a measure to make a forceful impact on their audience, the defendants made use of an unrelated and old footage

(showing physicians wearing black armbands) to make it appear that other doctors were supporting and sympathizing with the complaining unsuccessful examinees. According to the plaintiffs, the video footage in question actually related to a 1982 demonstration staged by doctors and personnel of the Philippine General Hospital (PGH) regarding wage and economic dispute with hospital management. In their answer with counterclaim, the defendants denied any wrongdoing, maintaining that their February 10, 1988 late evening telecast on the filing of the mandamus petition was contextually a concise and objective narration of a matter of public concern. They also alleged that the press freedom guarantee covered the telecast in question, undertaken as it was to inform, without malice, the viewing public on the conduct of public officials. And vis--vis the particular allegation on the film footages of the PGH demonstration, defendants tagged such footages as neutral. Pressing the point, defendants hastened to add that the footages were accompanied, when shown, by an appropriate voiceover, thus negating the idea conjured by the plaintiffs to create an effect beyond an obligation to report. In the course of trial, the plaintiffs presented testimonial evidence to prove their allegations about the Vidal report having exposed them, as professionals, to hatred, contempt and ridicule. And in a bid to establish malice and bad faith on the part of the defendants, the plaintiffs adduced evidence tending to show that the former exerted no effort toward presenting their (plaintiffs) side in subsequent telecasts. In a decision[6] dated October 17, 1995, the trial court found for the herein petitioners, as defendants a quo, on the postulate that the Vidal telecast report in question is privileged. Dispositively, the decision reads:
WHEREFORE, in view of the foregoing considerations, plaintiffs complaint for damages against defendants Republic Broadcasting System Incorporated and Rey Vidal is hereby DISMISSED. The defendants counterclaim for damages is likewise dismissed. SO ORDERED.

Following the denial of their motion for reconsideration,[7] herein respondents went on appeal to the CA in CA-G.R. CV No. 52240. As stated at the threshold hereof, the appellate court, in its decision[8] of January 25, 2001, reversed and set aside that of the trial court, to wit:
WHEREFORE, the Decision dated October 17, 1995 is hereby REVERSED and SET ASIDE and [petitioners] are hereby ordered to pay, in solidum, the following: a) damages; the amount of P100,000.00 for each of the [respondents] as moral

b) the amount of P100,000.00 for each of the [respondents] as exemplary damages; c) d) the amount of P20,000.00 as attorneys fee; and cost of suit.

SO ORDERED. (Words in brackets added.)

Hence, petitioners present recourse, consideration the following questions:

A.

submitting

for

the

Courts

WHETHER OR NOT THE CA, AFTER DECLARING THE NEWS TELECAST OF FEBRUARY 10, 1988 AS QUALIFIEDLY PRIVILEGED COMMUNICATION, COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN INJECTING ACTUAL MALICE TO THE NEWS TELECAST OF FEBRUARY 10, 1988 JUST SO THAT RESPONDENT BOARD OF MEDICINE COULD RECOVER MORAL AND EXEMPLARY DAMAGES. B. WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN COMPLETELY REJECTING PETITIONERS EVIDENCE THAT THE CHARACTER GENERATED WORDS FILE VIDEO WERE INDICATED ON SCREEN TO IDENTIFY THE SHOWING OF THE OLD FILM FOOTAGE IN THE NEWS TELECAST OF FEBRUARY 10, 1988. C.

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR IN IMPUTING MALICE UPON PETITIONERS FOR NOT PRESENTING A TAPE COPY OF THE NEWS TELECAST OF FEBRUARY 10, 1988 ON THE GRATUITOUS DECLARATION THAT A TAPE COPY COULD BE EASILY SECURED FROM THE NATIONAL TELECOMMUNICATIONS COMMISSION (NTC) WHICH ALLEGEDLY KEEPS FILE COPIES OF ALL SHOWS FOR A CERTAIN PERIOD OF TIME. D. WHETHER OR NOT RESPONDENT BOARD OF MEDICINE CHAIRMAN AND MEMBERS THEREOF, WHO NEVER QUESTIONED THE COURT OF APPEALS DECISION DATED JANUARY 25, 2001 IN A SEPARATE AND INDEPENDENT PETITION BEFORE THE HONORABLE COURT, CAN ASK FOR AN INCREASED AWARD IN DAMAGES FROM THE HONORABLE COURT UNDER THEIR COMMENT DATED 7 MAY 2001.

Summed up, the issues tendered in this petition boil down to the following: (1) whether or not the televised news report in question on the filing of the petition for mandamus against the respondents is libelous; and (2) whether or not the insertion of the old film footage depicting the doctors and personnel of PGH in their 1982 demonstrations constitutes malice to warrant the award of damages to the respondents. It bears to stress, at the outset, that the trial court found the disputed news report not actionable under the law on libel, hence no damages may be recovered. Wrote that court:
This Court finds the telecast of February 10, 1988 aired over Channel 7 by [petitioner] Rey Vidal as a straight news report of the acts and conduct of the members of the Medical Board of Examiners who are public officers, devoid of comment or remarks, and thus privileged, and recognized under the 1987 Constitution. A comparative examination of the telecast of the disputed news report with the Petition for Mandamus entitled Abello, et al., vs. Professional Regulation Commission filed before the [RTC] by the medical examinees reveals that the disputed news report is but a narration of the allegations contained in and circumstances attending the filing of the said Petition for Mandamus. In the case of Cuenco vs. Cuenco, G.R. No. L-29560, March 31, 1976 , [it was] held that the correct rule is that a fair and true report of a complaint filed in Court without remarks nor comments even before an answer is filed or a decision promulgated should be covered by the privilege. xxx. This Court adopts the ruling

[in Cuenco] to support its finding of fact that the disputed news report consists merely of a summary of the allegations in the said Petition for Mandamus, filed by the medical examinees, thus the same falls within the protected ambit of privileged communication. xxx xxx xxx

Thus, [petitioners], in consideration of the foregoing observations cannot be held liable for damages claimed by [respondents] for simply bringing to fore information on subjects of public concern.[9] (Words in brackets supplied.)

The CA, too, regarded the text of the news telecast as not libelous and as a qualifiedly privileged communication, [it having been] merely lifted or quoted from the contents and allegations in the said petition [for mandamus]. [10] But unlike the trial court, the CA saw fit to award damages to the respondents, it being its posture that the insertion to the news telecast of the unrelated 1982 PGH picket film footage is evidence of malice. Without quite saying so, the CA viewed the footage insertion as giving a televised news report otherwise privileged a libelous dimension. In the precise words of the appellate court:
While it is the duty of the media to report to the public matters of public concern and interest, the report should be a fair, accurate and true report of the proceedings. The subject telecast failed in this aspect. The insertion of the film footage showing the doctors demonstration at the PGH several times during the news report on the petition filed by the board flunkers undoubtedly created an impression that the said demonstration was related to the filing of the case by the board flunkers. The insertion of the film footage without the words file video, and which had no connection whatsoever to the petition, was done with the knowledge of the [petitioners], thus, in wanton and reckless disregard of their duty to the public to render a fair, accurate and true report of the same. xxx xxx xxx

The findings of malice on the part of the [petitioners] should not be construed as a censure to the freedom of the press since their right to render a news on matters of public concern was not the issue but rather the misrepresentation made when they inserted a film footage of the doctors demonstration which created a wrong impression of the real situation. Unquestionably, the news reporting, interview and the showing of [the flunkers] filing the case were fair reporting. At this point, that would have been sufficient to inform the public of what really happened. However, for reasons only known to [petitioners], they inserted the questioned film footage which

had no relation to the news being reported. There is no other conclusion that there was motive to create an impression that the issue also affected the doctors which forced them to demonstrate. xxx. (Words in brackets supplied).

With the view we take of this case, given the parallel unchallenged determination of the two courts below that what petitioner Vidal reported was privileged, the award of damages is untenable as it is paradoxical. An award of damages under the premises presupposes the commission of an act amounting to defamatory imputation or libel, which, in turn, presupposes malice. Libel is the public and malicious imputation to another of a discreditable act or condition tending to cause the dishonor, discredit, or contempt of a natural or juridical person.[11] Liability for libel attaches present the following elements: (a) an allegation or imputation of a discreditable act or condition concerning another; (b) publication of the imputation; (c) identity of the person defamed; and (d) existence of malice.[12] Malice or ill-will in libel must either be proven (malice in fact) or may be taken for granted in view of the grossness of the imputation (malice in law). Malice, as we wrote in Brillante v. Court of Appeals,[13] is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed. Malice implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous or defamatory remarks made the same with knowledge that it was false or with reckless disregard as to the truth or falsity thereof. In the instant case, there can be no quibbling that what petitioner corporation aired in its Channel 7 in the February 10, 1988 late evening newscast was basically a narration of the contents of the aforementioned petition for mandamus. This is borne by the records of the case and was likewise the finding of the trial court. And the narration had for its subject nothing more than the purported mistakes in paper checking and the errors in the counting and tallying of the scores in the August 1987 physicians licensure examinations attributable to the then chairman and members of the Board of Medicine. Conceding hypothetically that some failing specifically against the respondents had been ascribed in that news telecast, it bears to stress that not

all imputations of some discreditable act or omission, if there be any, are considered malicious thus supplying the ground for actionable libel. For, although every defamatory imputation is presumed to be malicious, the presumption does not exist in matters considered privileged. In fine, the privilege destroys the presumption. Privileged matters may be absolute or qualified.[14] Absolutely privileged matters are not actionable regardless of the existence of malice in fact. In absolutely privileged communications, the mala or bona fides of the author is of no moment as the occasion provides an absolute bar to the action. Examples of these are speeches or debates made by Congressmen or Senators in the Congress or in any of its committees. On the other hand, in qualifiedly or conditionally privileged communications, the freedom from liability for an otherwise defamatory utterance is conditioned on the absence of express malice or malice in fact. The second kind of privilege, in fine, renders the writer or author susceptible to a suit or finding of libel provided the prosecution established the presence of bad faith or malice in fact. To this genre belongs private communications and fair and true report without any comments or remarks falling under and described as exceptions in Article 354 of the Revised Penal Code.[15] To be sure, the enumeration under the aforecited Article 354 is not an exclusive list of conditional privilege communications as the constitutional guarantee of freedom of the speech and of the press has expanded the privilege to include fair commentaries on matters of public interest.[16] . In the case at bench, the news telecast in question clearly falls under the second kind of privileged matter, the same being the product of a simple narration of the allegations set forth in the mandamus petition of examinees Abello, et al., devoid of any comment or remark. Both the CA and the trial court in fact found the narration to be without accompanying distortive or defamatory comments or remarks. What at bottom petitioners Vidal and GMA Network, Inc., then did was simply to inform the public of the mandamus petition filed against the respondent doctors who were admittedly the then chairman and members of the Board of Medicine. It was clearly within petitioner Vidals job as news writer and reporte r assigned to cover government institutions to keep the public abreast of recent developments therein. It must be reiterated that the courts a quo had determined the news report in question to be qualifiedly privileged communication protected under the 1987 Constitution.

This brings us to the more important question of whether or not the complaining respondents, in their effort to remove the protection accorded by the privilege, succeeded in establishing ill-will and malice on the part of the petitioners in their televised presentation of the news report in dispute, thus committing libel. The CA, adopting the respondents line on the matter of malice, resolved the question in the affirmative. As the CA noted, the insertion of an old film footage showing doctors wearing black armbands and demonstrating at the PGH, without the accompanying character-generated words file video, created the impression that other doctors were supporting and sympathizing with the unsuccessful examinees. The Court disagrees. Contrary to the CAs findings, the identifying character-generated words file video appeared to have been superimposed on screen, doubtless to disabuse the minds of televiewers of the idea that a particular footage is current. In the words of the trial court, the phrase file video was indicated on screen purposely to prevent misrepresentation so as not to confuse the viewing public.[17] The trial court added the observation that the use of file footage in TV news reporting is a standard practice.[18] At any rate, the absence of the accompanying charactergenerated words file video would not change the legal situation insofar as the privileged nature of the audio-video publication complained of is concerned. For, with the view we take of the state of things, the video footage was not libel in disguise; standing without accompanying sounds or voices, it was meaningless, or, at least, conveyed nothing derogatory in nature. And lest it be overlooked, personal hurt or embarrassment or offense, even if real, is not automatically equivalent to defamation. The law against defamation protects ones interest in acquiring, retaining and enjoying a reputation as good as ones character and conduct warrant in the community.[19] Clearly then, it is the community, not personal standards, which shall be taken into account in evaluating any allegations of libel and any claims for damages on account thereof. So it is that in Bulletin Publishing Corp. v. Noel,[20] we held:

The term community may of course be drawn as narrowly or as broadly as the user of the term and his purposes may require. The reason why for purposes of the law on libel the more general meaning of community must be adopted in the ascertainment of relevant standards, is rooted deep in our constitutional law. That reason relates to the fundamental public interest in the protection and promotion of free speech and expression, an interest shared by all members of the body politic and territorial community. A newspaper should be free to report on events and developments in which the public has a legitimate interest, wherever they may take place within the nation and as well in the outside world, with minimum fear of being hauled to court by one group or another (however defined in scope) on criminal or civil charges for libel, so long as the newspaper respects and keep within the general community. Any other rule on defamation, in a national community like ours with many, diverse cultural, social, religious an other groupings, is likely to produce an unwholesome chilling effect upon the constitutionally protected operations of the press and other instruments of information and education.

It cannot be over-emphasized furthermore that the showing of the 1982 film footage, assuming for argument that it contained demeaning features, was actually accompanied or simultaneously voiced over by the narration of the news report lifted from the filing of the mandamus petition. As aptly put by the petitioners without controversion from the respondents, there was nothing in the news report to indicate an intent to utilize such old footages to create another news story beyond what was reported.[21] To be sure, actual malice, as a concept in libel, cannot plausibly be deduced from the fact of petitioners having dubbed in their February 10, 1988 telecast an old unrelated video footage. As it were, nothing in the said footage, be it taken in isolation or in relation to the narrated Vidal report, can be viewed as reputation impeaching; it did not contain an attack, let alone a false one, on the honesty, character or integrity or like personal qualities of any of the respondents, who were not even named or specifically identified in the telecast. It has been said that if the matter is not per selibelous, malice cannot be inferred from the mere fact of publication.[22] And as records tend to indicate, the petitioners, particularly Vidal, do not personally know or had dealings with any of the respondents. The Court thus perceives no reason or motive on the part of either petitioner for malice. The respondents too had failed to substantiate by preponderant evidence that petitioners were animated by a desire to inflict them unjustifiable harm or at least to place them in a discomforting light.

Surely, the petitioners failure, perhaps even their indisposition, to obtain and telecast the respondents side is not an indicia of malice. Even the CA, by remaining mum on this point, agrees with this proposition and with the petitioners proffered defense on the matter. As petitioner Vidal said while on the witness box, his business as a reporter is to report what the public has the right to know, not to comment on news and events, obviously taking a cue from the pronouncement of the US Fifth Circuit Court of Appeals in New York Times Co. v. Connor[23] that a reporter may rely on statements made by a single source even though t hey reflect only one side of the story without fear of libel prosecution by a public official. What is more, none of the herein respondents ever made a claim or pretence that he or all of them collectively was or were among the demonstrating PGH doctors in the 1982 video footage. It thus puzzles the mind how they could claim to have been besmirched by the use of the same video in the subject news telecast. Given the foregoing considerations, the propriety of the award by the CA of moral and exemplary damages need not detain us long. Suffice it to state that moral damages may be recovered only if the existence of the factual and legal bases for the claim and their causal connection to the acts complained of are satisfactorily proven.[24] Sadly, the required quantum of proof is miserably wanting in this case. This is as it should be. For, moral damages, albeit incapable of pecuniary estimation, are designed not to impose a penalty but to compensate one for injury sustained and actual damages suffered.[25] Exemplary damages, on the other hand, may only be awarded if the claimants, respondents in this case, were able to establish their right to moral, temperate, liquidated or compensatory damages.[26] Not being entitled to moral damages, neither may the respondents lay claim for exemplary damages. In all, the Court holds and so rules that the subject news report was clearly a fair and true report, a simple narration of the allegations contained in and circumstances surrounding the filing by the unsuccessful examinees of the petition for mandamus before the court, and made without malice. Thus, we find the petitioners entitled to the protection and immunity of the rule on privileged matters under Article 354 (2) of the Revised Penal Code. It follows that they too cannot be

held liable for damages sought by the respondents, who, during the period material, were holding public office. We close this ponencia with the following oft-quoted excerpts from an old but still very much applicable holding of the Court on how public men should deport themselves in the face of criticism:
The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged by the balm of clear conscience. A public officer must not be too thin-skinned with reference to comment upon his officials acts. Only thus can the intelligence and dignity of the individual be exalted. xxx.[27]

IN VIEW WHEREOF, the petition is GRANTED. Accordingly, the assailed decision dated January 25, 2001 of the appellate court in CA-G.R. CV No. 52240 is REVERSED and SET ASIDE and that of the trial court is REINSTATED and AFFIRMED in toto. No pronouncement as to costs. SO ORDERED.

CANCIO C. GARCIA Associate Justice

WE CONCUR:

REYNATO S. PUNO Associate Justice Chairperson

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

RENATO C. CORONA Associate Justice

ADOLFO S. AZCUNA Associate Justice

ATTESTATION I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S. PUNO Associate Justice Chairperson, Second Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice

[1]

[2]

[3]

As filed, the petition impleads the Court of Appeals as respondent, which should not have been under Sec. 4 of Rule 45 of the Rules of Court. Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justice Romeo A. Brawner (now a Comelec Commissioner) and Associate Justice Juan Q. Enriquez, Jr., Rollo, pp. 11-26. Id. at 27-34. Petitioners Memorandum, pp. 9-11, Id. at 398-400 and Respondents Memorandum, pp. 24 -25, Id. at 365366. Annex D, Petition, Id. at 102 et seq. Supra note 3. Per Order dated January 17, 1996; Annex M, Petition, Rollo, p. 163. Supra note 2. Supra note 3 at 6 and 8. Supra note 2 at 9. Article 353 of the Revised Penal Code. Daez v. Court of Appeals, G.R. No. 47971, October 31,1990, 191 SCRA 61. G.R. Nos. 118757 & 121571, October 19, 2004, 440 SCRA 441, citing US v. Caete, 38 Phil. 253 (1918) and Vasquez v. Court of Appeals, 373 Phil. 238, 314 SCRA 460 (1999), citing New YorkTimes v. Sullivan, 376 US. 254 (1964). Flor v. People, G.R. No. 139987, March 31, 2005, 454 SCRA 440, citing Article VI, Section 11 of the 1987 Constitution and Regalado, Florenz, Criminal Law Conspectus, p. 646 (1st Ed.). Art. 354. Requirement of 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. 2. A private communication made by any person to another in the performance of any legal, moral, or social duty; and

[4]

[5] [6] [7] [8] [9] [10] [11] [12] [13]

[14]

[15]

[16] [17] [18] [19]

[20]

[21] [22] [23] [24] [25] [26] [27]

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. Borjal v. Court of Appeals, G.R. No. 126466, January 14, 1999, 301 SCRA 1. Page 7 of the RTC Decision; Rollo, p. 98. Ibid. Bulletin Publishing Corp. v. Noel, G.R. No. L-76565, November 9, 1988, 167 SCRA 255, citing Harper and James, The Law of Torts, Vol. 1, p. 349 (1956). Id., citing Weiman v. Updegraff, 344 U.S. 183, (1052); New York Times Co. v. Sullivan, 376 U.S. 254, (1964); Time Inc. v. Hill, 385 U.S. 374, (1967); and The Chilling Effect in Constitutional Law, 69 Columbia L. Rev. 808, (1969). CA Decision, p. 5; Rollo, p. 15. Reyes, Jr. v. CA, 47 O.G. 3569. No. 22362 [August 4, 1966], 365 F. 2d 567,576. Article 2217, New Civil Code of the Philippines. Simex International, Inc. v. Court of Appeals, G.R. No. 88013, March19, 1990, 183 SCRA 360. Article 2234, New Civil Code of the Philippines. United v. Bustos, 37 Phil. 731, 740-41 (1918).

EN BANC

[G.R. No. 135306. January 28, 2003]

MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., petitioners, vs. ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDUL-RAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, respondents. DECISION
I may utterly detest what you write, but I shall fight to the death to make it possible for you to continue writing it. - Voltaire
BELLOSILLO, J.:

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech and free press - liberties that belong as well, if not more, to those who question, who do not conform, who differ. For the ultimate good which we all strive to achieve for ourselves and our posterity can better be reached by a free exchange of ideas, where the best test of truth is the power of the thought to get itself accepted in the competition of the free market - not just the ideas we desire, but including those thoughts we despise.[1] ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of more than seventy (70) Muslim religious organizations, and individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, filed in the Regional Trial Court of Manila a complaint for damages in their own behalf and as a class suit in behalf of the Muslim members nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., arising from an article published in the 1 August 1992 issue of Bulgar, a daily tabloid. The article reads:

"ALAM BA NINYO? Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?

Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang Ramadan."
The complaint alleged that the libelous statement was insulting and damaging to the Muslims; that these words alluding to the pig as the God of the Muslims was not only published out of sheer ignorance but with intent to hurt the feelings, cast insult and disparage the Muslims and Islam, as a religion in this country, in violation of law, public policy, good morals and human relations; that on account of these libelous words Bulgar insulted not only the Muslims in the Philippines but the entire Muslim world, especially every Muslim individual in non-Muslim countries. MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their defense, contended that the article did not mention respondents as the object of the article and therefore were not entitled to damages; and, that the article was merely an expression of belief or opinion and was published without malice nor intention to cause damage, prejudice or injury to Muslims.[2] On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs failed to establish their cause of action since the persons allegedly defamed by the article were not specifically identified -

It must be noted that the persons allegedly defamed, the herein plaintiffs, were not identified with specificity. The subject article was directed at the Muslims without mentioning or identifying the herein plaintiffs x x x x It is thus apparent that the alleged libelous article refers to the larger collectivity of Muslims for which the readers of the libel could not readily identify the personalities of the persons defamed. Hence, it is difficult for an individual Muslim member to prove that the defamatory remarks apply to him. The evidence presented in this case failed to convince this court that, indeed, the defamatory remarks really applied to the herein plaintiffs.
[3]

On 27 August 1998 the Court of Appeals reversed the decision of the trial court. It opined that it was "clear from the disputed article that the defamation was directed to all adherents of the Islamic faith. It stated that pigs were sacred and idolized as god by members of the Muslim religion. This libelous imputation undeniably applied to the plaintiff-appellants who are Muslims sharing the same religious beliefs." It added that the suit for damages was a "class suit" and that ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s religious status as a Muslim umbrella organization gave it the requisite personality to sue and protect the interests of all Muslims.[4] Hence, the instant petition for review assailing the findings of the appellate court (a) on the existence of the elements of libel, (b) the right of respondents to institute the class suit, and, (c) the liability of petitioners for moral damages, exemplary damages, attorney's fees and costs of suit.

Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and malicious statements.[5] It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff.[6] It is the publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute.[7] Defamation is an invasion of a relational interest since it involves the opinion which others in the community may have, or tend to have, of the plaintiff.[8] It must be stressed that words which are merely insulting are not actionable as libel or slander per se, and mere words of general abuse however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute a basis for an action for defamation in the absence of an allegation for special damages. [9] The fact that the language is offensive to the plaintiff does not make it actionable by itself. [10] Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable individual. Absent circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a right of action[11] without at all impairing the equally demanding right of free speech and expression, as well as of the press, under the Bill of Rights.[12] Thus, in Newsweek, Inc. v. Intermediate Appellate Court,[13] we dismissed a complaint for libel against Newsweek, Inc., on the ground that private respondents failed to state a cause of action since they made no allegation in the complaint that anything contained in the article complained of specifically referred to any of them. Private respondents, incorporated associations of sugarcane planters in Negros Occidental claiming to have 8,500 members and several individual members, filed a class action suit for damages in behalf of all sugarcane planters in Negros Occidental. The complaint filed in the Court of First Instance of Bacolod City alleged that Newsweek, Inc., committed libel against them by the publication of the article "Island of Fear" in its weekly newsmagazine allegedly depicting Negros Province as a place dominated by wealthy landowners and sugar planters who not only exploited the impoverished and underpaid sugarcane workers but also brutalized and killed them with impunity. Private respondents alleged that the article showed a deliberate and malicious use of falsehood, slanted presentation and/or misrepresentation of facts intended to put the sugarcane planters in a bad light, expose them to public ridicule, discredit and humiliation in the Philippines and abroad, and make them the objects of hatred, contempt and hostility of their agricultural workers and of the public in general. We ratiocinated -

x x x where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be x x x x The case at bar is not a class suit. It is not a case where one or more may sue for the benefit of all, or where the representation of class interest affected by the judgment or decree is indispensable to make each member of the class an actual party. We have here a case where each

of the plaintiffs has a separate and distinct reputation in the community. They do not have a common or general interest in the subject matter of the controversy.
In the present case, there was no fairly identifiable person who was allegedly injured by the Bulgar article. Since the persons allegedly defamed could not be identifiable, private respondents have no individual causes of action; hence, they cannot sue for a class allegedly disparaged. Private respondents must have a cause of action in common with the class to which they belong to in order for the case to prosper. An individual Muslim has a reputation that is personal, separate and distinct in the community. Each Muslim, as part of the larger Muslim community in the Philippines of over five (5) million people, belongs to a different trade and profession; each has a varying interest and a divergent political and religious view -some may be conservative, others liberal. A Muslim may find the article dishonorable, even blasphemous; others may find it as an opportunity to strengthen their faith and educate the non-believers and the "infidels." There is no injury to the reputation of the individual Muslims who constitute this community that can give rise to an action for group libel. Each reputation is personal in character to every person. Together, the Muslims do not have a single common reputation that will give them a common or general interest in the subject matter of the controversy. In Arcand v. The Evening Call Publishing Company,[14] the United States Court of Appeals held that one guiding principle of group libel is that defamation of a large group does not give rise to a cause of action on the part of an individual unless it can be shown that he is the target of the defamatory matter. The rule on libel has been restrictive. In an American case,[15] a person had allegedly committed libel against all persons of the Jewish religion. The Court held that there could be no libel against an extensive community in common law. In an English case, where libel consisted of allegations of immorality in a Catholic nunnery, the Court considered that if the libel were on the whole Roman Catholic Church generally, then the defendant must be absolved.[16] With regard to the largest sectors in society, including religious groups, it may be generally concluded that no criminal action at the behest of the state, or civil action on behalf of the individual, will lie. In another case, the plaintiffs claimed that all Muslims, numbering more than 600 million, were defamed by the airing of a national television broadcast of a film depicting the public execution of a Saudi Arabian princess accused of adultery, and alleging that such film was "insulting and defamatory" to the Islamic religion. [17] The United States District Court of the Northern District of California concluded that the plaintiffs' prayer for $20 Billion in damages arising from "an international conspiracy to insult, ridicule, discredit and abuse followers of Islam throughout the world, Arabs and the Kingdom of Saudi Arabia" bordered on the "frivolous," ruling that the plaintiffs had failed to demonstrate an actionable claim for defamation. The California Court stressed that the aim of the law on defamation was to protect individuals; a group may be sufficiently large that a statement concerning it could not defame individual group members. [18]

Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of Libel,"[19] discusses the inappropriateness of any action for tortious libel involving large groups, and provides a succinct illustration:

There are groupings which may be finite enough so that a description of the body is a description of the members. Here the problem is merely one of evaluation. Is the description of the member implicit in the description of the body, or is there a possibility that a description of the body may consist of a variety of persons, those included within the charge, and those excluded from it? A general charge that the lawyers in the city are shysters would obviously not be a charge that all of the lawyers were shysters. A charge that the lawyers in a local point in a great city, such as Times Square in New York City, were shysters would obviously not include all of the lawyers who practiced in that district; but a statement that all of the lawyers who practiced in a particular building in that district were shysters would be a specific charge, so that any lawyer having an office within that building could sue.
If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in particular, since one might as well defame all mankind. Not only does the group as such have no action; the plaintiff does not establish any personal reference to himself.[20] At present, modern societal groups are both numerous and complex. The same principle follows with these groups: as the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become elusive. This principle is said to embrace two (2) important public policies: first, where the group referred to is large, the courts presume that no reasonable reader would take the statements as so literally applying to each individual member; andsecond, the limitation on liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise between the conflicting fundamental interests involved in libel cases.[21] In the instant case, the Muslim community is too vast as to readily ascertain who among the Muslims were particularly defamed. The size of the group renders the reference as indeterminate and generic as a similar attack on Catholics, Protestants, Buddhists or Mormons would do. The word "Muslim" is descriptive of those who are believers of Islam, a religion divided into varying sects, such as the Sunnites, the Shiites, the Kharijites, the Sufis and others based upon political and theological distinctions. "Muslim" is a name which describes only a general segment of the Philippine population, comprising a heterogeneous body whose construction is not so well defined as to render it impossible for any representative identification. The Christian religion in the Philippines is likewise divided into different sects: Catholic, Baptist, Episcopalian, Presbyterian, Lutheran, and other groups the essence of which may lie in an inspired charlatan, whose temple may be a corner house in the fringes of the countryside. As with the Christian religion, so it is with other religions that represent the nation's culturally diverse people and minister to each one's spiritual

needs. The Muslim population may be divided into smaller groups with varying agenda, from the prayerful conservative to the passionately radical. These divisions in the Muslim population may still be too large and ambiguous to provide a reasonable inference to any personality who can bring a case in an action for libel. The foregoing are in essence the same view scholarly expressed by Mr. Justice Reynato S. Puno in the course of the deliberations in this case. We extensively reproduce hereunder his comprehensive and penetrating discussion on group libel -

Defamation is made up of the twin torts of libel and slander the one being, in general, written, while the other in general is oral. In either form, defamation is an invasion of the interest in reputation and good name. This is a relational interest since it involves the opinion others in the community may have, or tend to have of the plaintiff. The law of defamation protects the interest in reputation the interest in acquiring, retaining and enjoying ones reputation as good as ones character and conduct warrant. The mere fact that the plaintiffs feelings and sensibilities have been offended is not enough to create a cause of action for defamation. Defamation requires that something be communicated to a third person that may affect the opinion others may have of the plaintiff. The unprivileged communication must be shown of a statement that would tend to hurt plaintiffs reputation, to impair plaintiffs standing in the community. Although the gist of an action for defamation is an injury to reputation, the focus of a defamation action is upon the allegedly defamatory statement itself and its predictable effect upon third persons. A statement is ordinarily considered defamatory if it tend[s] to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace The Restatement of Torts defines a defamatory statement as one that tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as part of his prima facie case that the defendant (1) published a statement that was (2) defamatory (3) of and concerning the plaintiff. The rule in libel is that the action must be brought by the person against whom the defamatory charge has been made. In the American jurisdiction, no action lies by a third person for damages suffered by reason of defamation of another person, even though the plaintiff suffers some injury therefrom. For recovery in defamation cases, it is necessary that the publication be of and concerning the plaintiff. Even when a publication may be clearly defamatory as to somebody, if the words have no personal

application to the plaintiff, they are not actionable by him. If no one is identified, there can be no libel because no ones reputation has been injured x x x x In fine, in order for one to maintain an action for an alleged defamatory statement, it must appear that the plaintiff is the person with reference to whom the statement was made. This principle is of vital importance in cases where a group or class is defamed since, usually, the larger the collective, the more difficult it is for an individual member to show that he was the person at whom the defamation was directed. If the defamatory statements were directed at a small, restricted group of persons, they applied to any member of the group, and an individual member could maintain an action for defamation. When the defamatory language was used toward a small group or class, including every member, it has been held that the defamatory language referred to each member so that each could maintain an action. This small group or class may be a jury, persons engaged in certain businesses, professions or employments, a restricted subdivision of a particular class, a society, a football team, a family, small groups of union officials, a board of public officers, or engineers of a particular company. In contrast, if defamatory words are used broadly in respect to a large class or group of persons, and there is nothing that points, or by proper colloquium or innuendo can be made to apply, to a particular member of the class or group, no member has a right of action for libel or slander. Where the defamatory matter had no special, personal application and was so general that no individual damages could be presumed, and where the class referred to was so numerous that great vexation and oppression might grow out of the multiplicity of suits, no private action could be maintained. This rule has been applied to defamatory publications concerning groups or classes of persons engaged in a particular business, profession or employment, directed at associations or groups of association officials, and to those directed at miscellaneous groups or classes of persons. Distinguishing a small group-which if defamed entitles all its members to sue from a large group which if defamed entitles no one to sue is not always so simple. Some authorities have noted that in cases permitting recovery, the group generally has twenty five (25) or fewer members. However, there is usually no articulated limit on size. Suits have been permitted by members of fairly large groups when some distinguishing characteristic of the individual or group increases the likelihood that the statement could be interpreted to apply individually. For example, a single player on the 60 to 70 man Oklahoma University football team was permitted to sue when a writer accused the entire team of taking amphetamines to hop up its performance; the individual was a fullback, i.e., a significant position on the team and had played in all but two of the teams games.

A prime consideration, therefore, is the public perception of the size of the group and whether a statement will be interpreted to refer to every member. The more organized and cohesive a group, the easier it is to tar all its members with the same brush and the more likely a court will permit a suit from an individual even if the group includes more than twenty five (25) members. At some point, however, increasing size may be seen to dilute the harm to individuals and any resulting injury will fall beneath the threshold for a viable lawsuit. x x x x There are many other groupings of men than those that are contained within the foregoing group classifications. There are all the religions of the world, there are all the political and ideological beliefs; there are the many colors of the human race. Group defamation has been a fertile and dangerous weapon of attack on various racial, religious and political minorities. Some states, therefore, have passed statutes to prevent concerted efforts to harass minority groups in the United States by making it a crime to circulate insidious rumors against racial and religious groups. Thus far, any civil remedy for such broadside defamation has been lacking. There have been numerous attempts by individual members to seek redress in the courts for libel on these groups, but very few have succeeded because it felt that the groups are too large and poorly defined to support a finding that the plaintiff was singled out for personal attack x x x x (citations omitted).
Our conclusion therefore is that the statements published by petitioners in the instant case did not specifically identify nor refer to any particular individuals who were purportedly the subject of the alleged libelous publication. Respondents can scarcely claim to having been singled out for social censure pointedly resulting in damages. A contrary view is expressed that what is involved in the present case is an intentional tortious act causing mental distress and not an action for libel. That opinion invokes Chaplinsky v. New Hampshire[22] where the U.S. Supreme Court held that words heaping extreme profanity, intended merely to incite hostility, hatred or violence, have no social value and do not enjoy constitutional protection; and Beauharnais v. Illinois[23] where it was also ruled that hate speech which denigrates a group of persons identified by their religion, race or ethnic origin defames that group and the law may validly prohibit such speech on the same ground as defamation of an individual. We do not agree to the contrary view articulated in the immediately preceeding paragraph. Primarily, an "emotional distress" tort action is personal in nature, i.e., it is a civil action filed by an individual[24] to assuage the injuries to his emotional tranquility due to personal attacks on his character. It has no application in the instant case since no particular individual was identified in the disputed article of Bulgar. Also, the purported damage caused by the article, assuming there was any, falls under the principle of relational harm - which includes harm to social relationships in the community in the form of defamation; as distinguished from the principle of reactive harm - which includes injuries to individual emotional tranquility in the form of an infliction of emotional

distress. In their complaint, respondents clearly asserted an alleged harm to the standing of Muslims in the community, especially to their activities in propagating their faith in Metro Manila and in other non-Muslim communities in the country.[25] It is thus beyond cavil that the present case falls within the application of the relational harm principle of tort actions for defamation, rather than the reactive harm principle on which the concept of emotional distress properly belongs. Moreover, under the Second Restatement of the Law, to recover for the intentional infliction of emotional distress the plaintiff must show that: (a) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (b) The conduct was extreme and outrageous; (c) There was a causal connection between the defendant's conduct and the plaintiff's mental distress; and, (d) The plaintiff's mental distress was extreme and severe.[26] "Extreme and outrageous conduct" means conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. The defendant's actions must have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff.[27] Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him or her to exclaim, "Outrageous!" as his or her reaction.[28] "Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish, shock, fright, horror, and chagrin. [29] "Severe emotional distress," in some jurisdictions, refers to any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including posttraumatic stress disorder, neurosis, psychosis, chronic depression, or phobia.[30] The plaintiff is required to show, among other things, that he or she has suffered emotional distress so severe that no reasonable person could be expected to endure it; severity of the distress is an element of the cause of action, not simply a matter of damages.[31] Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger. Liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. In determining whether the tort of outrage had been committed, a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough language, and to occasional acts and words that are definitely inconsiderate and unkind; the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.[32] Hustler Magazine v. Falwell[33] illustrates the test case of a civil action for damages on intentional infliction of emotional distress. A parody appeared in Hustler magazine featuring the American fundamentalist preacher and evangelist Reverend Jerry Falwell depicting him in an inebriated state having an incestuous sexual liaison with his mother in an outhouse. Falwell sued Hustler and its publisher Larry Flynt for damages. The United States District Court for the Western District of Virginia ruled that the parody was

not libelous, because no reasonable reader would have understood it as a factual assertion that Falwell engaged in the act described. The jury, however, awarded $200,000 in damages on a separate count of "intentional infliction of emotional distress," a cause of action that did not require a false statement of fact to be made. The United States Supreme Court in a unanimous decision overturned the jury verdict of the Virginia Court and held that Reverend Falwell may not recover for intentional infliction of emotional distress. It was argued that the material might be deemed outrageous and may have been intended to cause severe emotional distress, but these circumstances were not sufficient to overcome the free speech rights guaranteed under the First Amendment of the United States Constitution. Simply stated, an intentional tort causing emotional distress must necessarily give way to the fundamental right to free speech. It must be observed that although Falwell was regarded by the U.S. High Court as a "public figure," he was an individual particularly singled out or identified in the parody appearing on Hustler magazine. Also, the emotional distress allegedly suffered by Reverend Falwell involved a reactive interest - an emotional response to the parody which supposedly injured his psychological well-being. Verily, our position is clear that the conduct of petitioners was not extreme or outrageous. Neither was the emotional distress allegedly suffered by respondents so severe that no reasonable person could be expected to endure it. There is no evidence on record that points to that result. Professor William Prosser, views tort actions on intentional infliction of emotional distress in this manner[34] -

There is virtually unanimous agreement that such ordinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation. The reasons are not far to seek. Our manners, and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages for all intended mental disturbance. Liability of course cannot be extended to every trivial indignity x x x x The plaintiff must necessarily be expected and required to be hardened to a certain amount of rough language, and to acts that are definitely inconsiderate and unkind x x x The plaintiff cannot recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this succinct observation, viz:[35]

There is no occasion for the law to intervene in every case where someones feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.
Thus, it is evident that even American courts are reluctant to adopt a rule of recovery for emotional harm that would "open up a wide vista of litigation in the field of

bad manners," an area in which a "toughening of the mental hide" was thought to be a more appropriate remedy.[36] Perhaps of greater concern were the questions of causation, proof, and the ability to accurately assess damages for emotional harm, each of which continues to concern courts today.[37] In this connection, the doctrines in Chaplinsky and Beauharnais had largely been superseded by subsequent First Amendment doctrines. Back in simpler times in the history of free expression the Supreme Court appeared to espouse a theory, known as the Two-Class Theory, that treated certain types of expression as taboo forms of speech, beneath the dignity of the First Amendment. The most celebrated statement of this view was expressed in Chaplinsky:

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. It has been well observed that such 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.
Today, however, the theory is no longer viable; modern First Amendment principles have passed it by. American courts no longer accept the view that speech may be proscribed merely because it is "lewd," "profane," "insulting" or otherwise vulgar or offensive.[38] Cohen v. California[39] is illustrative: Paul Robert Cohen wore a jacket bearing the words "Fuck the Draft" in a Los Angeles courthouse in April 1968, which caused his eventual arrest. Cohen was convicted for violating a California statute prohibiting any person from "disturb[ing] the peace x x x by offensive conduct." The U.S. Supreme Court conceded that Cohen's expletive contained in his jacket was "vulgar," but it concluded that his speech was nonetheless protected by the right to free speech. It was neither considered an "incitement" to illegal action nor "obscenity." It did not constitute insulting or "fighting" words for it had not been directed at a person who was likely to retaliate or at someone who could not avoid the message. In other words, no one was present in the Los Angeles courthouse who would have regarded Cohen's speech as a direct personal insult, nor was there any danger of reactive violence against him. No specific individual was targeted in the allegedly defamatory words printed on Cohen's jacket. The conviction could only be justified by Californias desire to exer cise the broad power in preserving the cleanliness of discourse in the public sphere, which the U.S. Supreme Court refused to grant to the State, holding that no objective distinctions can be made between vulgar and nonvulgar speech, and that the emotive elements of speech are just as essential in the exercise of this right as the purely cognitive. As Mr. Justice Harlan so eloquently wrote: "[O]ne mans vulgarity is another mans lyric x x x words are often chosen as much for their emotive as their cognit ive

force."[40] With Cohen, the U.S. Supreme Court finally laid the constitutional foundation for judicial protection of provocative and potentially offensive speech. Similarly, libelous speech is no longer outside the First Amendment protection. Only one small piece of the Two-Class Theory in Chaplinskysurvives - U.S. courts continue to treat "obscene" speech as not within the protection of the First Amendment at all. With respect to the "fighting words" doctrine, while it remains alive it was modified by the current rigorous clear and present danger test.[41] Thus, in Cohen the U.S. Supreme Court in applying the test held that there was no showing that Cohen's jacket bearing the words "Fuck the Draft" had threatened to provoke imminent violence; and that protecting the sensibilities of onlookers was not sufficiently compelling interest to restrain Cohen's speech. Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same fate as Chaplinsky. Indeed, when Beauharnais was decided in 1952, the Two-Class Theory was still flourishing. While concededly the U.S. High Tribunal did not formally abandon Beauharnais, the seminal shifts in U.S. constitutional jurisprudence substantially undercut Beauharnais and seriously undermined what is left of its vitality as a precedent. Among the cases that dealt a crushing impact on Beauharnais and rendered it almost certainly a dead letter case law are Brandenburg v. Ohio,[42] and, again, Cohen v. California.[43]These decisions recognize a much narrower set of permissible grounds for restricting speech than did Beauharnais.[44] In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under the Ohio Criminal Syndicalism Statute for advocating the necessity, duty and propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reforms; and for voluntarily assembling with a group formed to teach or advocate the doctrines of criminal syndicalism. Appellant challenged the statute and was sustained by the U.S. Supreme Court, holding that the advocacy of illegal action becomes punishable only if such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.[45] Except in unusual instances, Brandenburg protects the advocacy of lawlessness as long as such speech is not translated into action. The importance of the Brandenburg ruling cannot be overemphasized. Prof. Smolla affirmed that "Brandenburg must be understood as overrulingBeauharnais and eliminating the possibility of treating group libel under the same First Amendment standards as individual libel."[46] It may well be considered as one of the lynchpins of the modern doctrine of free speech, which seeks to give special protection to politically relevant speech. In any case, respondents' lack of cause of action cannot be cured by the filing of a class suit. As correctly pointed out by Mr. Justice Jose C. Vitug during the deliberations, "an element of a class suit is the adequacy of representation. In determining the question of fair and adequate representation of members of a class, the court must consider (a) whether the interest of the named party is coextensive with the interest of the other members of the class; (b) the proportion of those made parties as it so bears to the total membership of the class; and, (c) any other factor bearing on the ability of the named party to speak for the rest of the class.[47]

The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully protect the interests of all concerned. In the present controversy, Islamic Dawah Council of the Philippines, Inc., seeks in effect to assert the interests not only of the Muslims in the Philippines but of the whole Muslim world as well. Private respondents obviously lack the sufficiency of numbers to represent such a global group; neither have they been able to demonstrate the identity of their interests with those they seek to represent. Unless it can be shown that there can be a safe guaranty that those absent will be adequately represented by those present, a class suit, given its magnitude in this instance, would be unavailing." [48] Likewise on the matter of damages, we agree that "moral damages may be recovered only if the plaintiff is able to satisfactorily prove the existence of the factual basis for the damages and its causal connection with the acts complained of, [49] and so it must be, as moral damages although incapable of pecuniary estimation are designed not to impose a penalty but to compensate for injury sustained and actual damages suffered.[50] Exemplary damages, on the other hand, may only be awarded if claimant is able to establish his right to moral, temperate, liquidated or compensatory damages.[51] Unfortunately, neither of the requirements to sustain an award for either of these damages would appear to have been adequately established by respondents." In a pluralistic society like the Philippines where misinformation about another individual's religion is as commonplace as self-appointed critics of government, it would be more appropriate to respect the fair criticism of religious principles, including those which may be outrageously appalling, immensely erroneous, or those couched as fairly informative comments. The greater danger in our society is the possibility that it may encourage the frequency of suits among religious fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others. This would unnecessarily make the civil courts a battleground to assert their spiritual ideas, and advance their respective religious agenda. It need not be stressed that this Court has no power to determine which is proper religious conduct or belief; neither does it have the authority to rule on the merits of one religion over another, nor declare which belief to uphold or cast asunder, for the validity of religious beliefs or values are outside the sphere of the judiciary. Such matters are better left for the religious authorities to address what is rightfully within their doctrine and realm of influence. Courts must be viewpoint-neutral when it comes to religious matters if only to affirm the neutrality principle of free speech rights under modern jurisprudence where "[a]ll ideas are treated equal in the eyes of the First Amendment even those ideas that are universally condemned and run counter to constitutional principles."[52] Under the right to free speech, "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."[53] Denying certiorari and affirming the appellate court decision would surely create a chilling effect on the constitutional guarantees of freedom of speech, of expression, and of the press. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 27 August 1998 is REVERSED and SET ASIDE, and the Decision of the

RTC-Br. 4, Manila, dismissing the complaint for lack of merit, is REINSTATED and AFFIRMED. No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Corona, and Callejo, Sr., JJ., concur. Vitug, J., see concurring opinion. Mendoza, J., in the result. Carpio, and Austria-Martinez, JJ., see dissenting opinion. Panganiban, and Carpio-Morales, JJ., joins the dissent of J. Carpio. Azcuna, J., joins the dissent of Justice Austria-Martinez.

[1]

Cf. Holmes, J., dissenting in Abrams v. United States, 250 U.S. 630. Petitioners Mars C. Laconsay and Myla C. Aguja failed to file their Answer and were declared in default. Decision penned by Judge Vetino E. Reyes, RTC-Br. 4, Manila, Civil Case No. 92-62441, "Islamic Da'wah Council of the Philippines, Inc. v. MVRS Publications, Inc." Decision penned by Justice Teodoro P. Regino, concurred in by Justices Quirino D. Abad Santos, Jr., and Conrado M. Vasquez, Jr. Blacks Law Dictionary (4th ed. 1951), 505. Words and Phrases, "Defamation, citing Local 15 of Independent Workers of Noble County, Inc. v. International Broth. of Elec. Workers, D.C., Ind., 273 F. Supp. 313, 320. Id., citing Whitby v. Associates Discount Corp., 207 N.E. 2d 482, 484, 591 Ill. App. 2d 337. Prosser and Keeton on Torts, (5th ed. 1984). 50 Am. Jur. 2d, "Libel and Slander," 705 (1995). Ibid. 50 Am Jur 2d, Libel and Slander, 674 (1995). Art. III, Sec. 4, 1987 Constitution. G.R. No. 63559, 30 May 1986, 142 SCRA 171, 176-177. 567 F. 2d 1163, 1164 (1977). P. Wittenberg, "Dangerous Words: A Guide to the Law of Libel," 226-227, citing People v. Edmondson, 168 N.Y. Misc. 141. Id., 227, citing Rex v. Gathercole, 2 Lewin 237. Khalid Abdullah Tariq Al Mansour Faissal Fahd Al Talal v. Fanning, Civ. No. C 80-1869 RPA, 25 September 1980, 506 F.Supp. 186. Id., 187. Ibid. See note 8, 767-768.

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

[15]

[16]

[17]

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[21]

50 Am Jur 2d, 675 (1995). 315 U.S. 568 (1942). 343 U.S. 250 (1952). Not a group, unless the attack is directed against identifiable individuals within the group. Rollo, 55. See SECOND RESTATEMENT OF THE LAW, TORTS 2D 46.

[22]

[23]

[24]

[25]

[26]

46. Outrageous Conduct Causing Severe Emotional Distress (1) One who by extreme and outrageous conduct intentionally x x x causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. x x x
[27]

See 38 Am. Jur. 2d 15 citing cases. See also D. Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Col. L. Rev. 42 (1982). Ibid. Ibid. Ibid. Ibid. See 38 Am. Jur 2d 7 citing cases. 485 U.S. 46 (1988). Mr. Justice Anthony Kennedy did not take part. See note 8, 12, p. 59 citing Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1035. See also SECOND RESTATEMENT OF THE LAW, TORTS 2D 46. 49 Harv. L. Rev. 1053. See also SECOND RESTATEMENT OF THE LAW, TORTS 2D 46 citing Magruder. S. Olsen, White v. Monsanto: Louisiana Adopts the Restatement Approach to Intentional Infliction of Emotional Distress, 66 Tulane L. Rev. 2096 (1992) citing Magruder. Ibid. citing 38 Am. Jur. 2d 8-12. Smolla, Free Speech in an Open Society, 1993 Ed., at pp. 160-162. 403 U.S. 15 (1971). Id. at 25-26. See note 38. 395 U.S. 444 (1969). 403 U.S. 15 (1971). See Harvard Law Review, Vol. 101: 682 1988, at p. 684-687. Ibid. at 447. See note 38 at p. 165. 59 Am Jur 2d, 456 (1977). Citing Industrial Generating Co. v. Jenkins 410 SW 2d 658; Los Angeles County Winans, 109 P 640; Weberpals v. Jenny, 133 NE 62.

[28]

[29]

[30]

[31]

[32]

[33]

[34]

[35]

[36]

[37]

[38]

[39]

[40]

[41]

[42]

[43]

[44]

[45]

[46]

[47]

[48]

[49]

Art. 2217, New Civil Code. Simex International, Inc. v. Court of Appeals, G.R. No. 88013, 19 March 1990, 183 SCRA 360. See Art. 2234, New Civil Code. See note 38 at p. 46. Id., citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974).

[50]

[51]

[52]

[53]

Syllabus UNITED STATES v. ALVAREZ

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 11210. Argued February 22, 2012Decided June 28, 2012

The Stolen Valor Act makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved. 18 U. S. C. 704 (b), (c). Respondent pleaded guilty to a charge of falsely claiming that he had received the Medal of Honor, but reserved his right to appeal his claim that the Act is unconstitutional. The Ninth Circuit reversed, finding the Act invalid under the First Amendment. Held: The judgment is affirmed. Pp. 318. 617 F. 3d 1198, affirmed. Justice Kennedy, joined by The Chief Justice, Justice Ginsburg, and Justice Sotomayor, concluded that the Act infringes upon speech protected by the First Amendment. Pp. 318. (a) The Constitution demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality. Ashcroft v. American Civil Liberties Union, 542 U. S. 656. Content-based restrictions on speech have been permitted only for a few historic categories of speech, including incitement, obscenity, defamation, speech integral to criminal conduct, so-called fighting words, child pornography, fraud, true threats, and speech presenting some grave and imminent threat the Government has the power to prevent. Absent from these few categories is any general exception for false statements. The Government argues that cases such as Hustler Magazine, Inc., v. Falwell, 485 U. S. 46, support its claim that false statements have no value and hence no First Amendmentprotection. But all the Governments quotations derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement. In those decisions the falsity of the speech at issue was not irrelevant to the

Courts analysis, but neither was it determinative. These prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. Even when considering some instances of defamation or fraud, the Court has instructed that falsity alone may not suffice to bring the speech outside the First Amendment; the statement must be a knowing and reckless falsehood. See New York Times v. Sullivan, 376 U. S. 254. Here, the Government seeks to convert a rule that limits liability even in defamation cases where the law permits recovery for tortious wrongs into a rule that expands liability in a different, far greater realm of discourse and expression. The Governments three examples of false-speech regulation that courts generally have found permissible do not establish a principle that all proscriptions of false statements are exempt from rigorous First Amendment scrutiny. The criminal prohibition of a false statement made to Government officials in communications concerning official matters, 18 U. S. C. 1001, does not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context. As for perjury statutes, perjured statements lack First Amendment protection not simply because they are false, but because perjury undermines the function and province of the law and threatens the integrity of judgments. Finally, there are statutes that prohibit falsely representing that one is speaking on behalf of the Government, or prohibit impersonating a Government officer. These examples, to the extent that they implicate fraud or speech integral to criminal conduct, are inapplicable here. While there may exist some categories of speech that have been historically unprotected, but that the Court has not yet specifically identified or discussed, United States v. Stevens, 559 U. S. ___, ___, the Government has not demonstrated that false statements should constitute a new category. Pp. 310. (b) The Act seeks to control and suppress all false statements on this one subject in almost limitless times and settings without regard to whether the lie was made for the purpose of material gain. Permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Pp. 1011. (c) The Court applies the most exacting scrutiny in assessing content-based restrictions on protected speech. Turner Broadcasting System Inc. v. FCC, 512 U. S. 622. The Act does not satisfy that scrutiny. While the Governments interest in protecting the integrity of the Medal of Honor is beyond question, the First Amendment requires that there be a direct causal link between the restriction imposed and the injury to be prevented. Here, that link has not been shown. The Government points to no evidence supporting its claim that the publics general perception of military awards is diluted by false claims such as those made by respondent. And it has not shown, and cannot show, why counterspeech, such as the

ridicule respondent received online and in the press, would not suffice to achieve its interest. In addition, when the Government seeks to regulate protected speech, the restriction must be the least restrictive means among available, effective alternatives. Ashcroft, 542 U. S., at 666. Here, the Government could likely protect the integrity of the military awards system by creating a database of Medal winners accessible and searchable on the Internet, as some private individuals have already done. Pp. 1218. Justice Breyer, joined by Justice Kagan, concluded that because the Stolen Valor Act, as presently drafted, works disproportionate constitutional harm, it fails intermediate scrutiny, and thus violates the First Amendment. Pp. 110. (a) In determining whether a statute violates the First Amendment, the Court has often found it appropriate to examine the fit between statutory ends and means, taking into account the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provisions countervailing objectives, the extent to which the statute will tend to achieve those objectives, and whether there are other, less restrictive alternatives. Intermediate scrutiny describes this approach. Since false factual statements are less likely than true factual statements to make a valuable contribution to the marketplace of ideas, and the government often has good reason to prohibit such false speech, but its regulation can threaten speech-related harm, such an approach is applied here. Pp. 13. (b) The Act should be read as criminalizing only false factual statements made with knowledge of their falsity and with intent that they be taken as true. Although the Court has frequently said or implied that false factual statements enjoy little First Amendmentprotection, see, e.g., Gertz v. Robert Welch, Inc., 418 U. S. 323, those statements cannot be read to mean no protection at all. False factual statements serve useful human objectives in many contexts. Moreover, the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby chilling a kind of speech that lies at the First Amendments heart. See id., at 340341. And the pervasiveness of false factual statements provides a weapon to a government broadly empowered to prosecute falsity without more. Those who are unpopular may fear that the government will use that weapon selectively against them. Although there are many statutes and common-law doctrines making the utterance of certain kinds of false statements unlawful, they tend to be narrower than the Act, in that they limit the scope of their application in various ways, for example, by requiring proof of specific harm to identifiable victims. The Act lacks any such limiting features. Although it prohibits only knowing and intentional falsehoods about readily verifiable facts within the personal knowledge of the speaker, it otherwise ranges broadly, and that breadth means that it creates a significant risk of First Amendment harm. Pp. 38.

(c) The Act nonetheless has substantial justification. It seeks to protect the interests of those who have sacrificed their health and life for their country by seeking to preserve intact the countrys recognition of that sacrifice in the form of military honors. P. 8. (d) It may, however, be possible substantially to achieve the Governments objective in less burdensome ways. The First Amendment risks flowing from the Acts breadth of coverage could be diminished or eliminated by a more finely tailored statute, for example, a statute that requires a showing that the false statement caused specific harm or is focused on lies more likely to be harmful or on contexts where such lies are likely to cause harm. Pp. 810. Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Ginsburg and Sotomayor, JJ., joined. Breyer, J., filed an opinion concurring in the judgment, in which Kagan, J., joined. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.

TOP Opinion NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11210 _________________ UNITED STATES, PETITIONER v. XAVIER ALVAREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[June 28, 2012]

Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Ginsburg, and Justice Sotomayor join. Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Con-gressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. 704. In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board. The board is a governmental entity with headquarters in Claremont, California. He introduced himself as follows: Im a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. 617 F. 3d 1198, 12011202 (CA9 2010). None of this was true. For all the record shows, respondents statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal. Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal of Honor at the meeting. The United States District Court for the Central District of California rejected his claim that the statute is invalid under the First Amendment. Respondent pleaded guilty to one count, reserving the right to appeal on his First Amendment claim. The United States Court of Appeals for the Ninth Circuit, in a decision by a divided panel, found the Act invalid under the First Amendment and reversed the conviction. Id., at 1218. With further opinions on the issue, and over a dissent by seven judges, rehearing en banc was denied. 638 F. 3d 666 (2011). This Court granted certiorari. 565 U. S. ___ (2011). After certiorari was granted, and in an unrelated case, the United States Court of Appeals for the Tenth Circuit, also in a decision by a divided panel, found the Act constitutional. United States v. Strandlof, 667 F. 3d 1146 (2012). So there is now a conflict in the Courts of Appeals on the question of the Acts validity. This is the second case in two Terms requiring the Court to consider speech that can disparage, or attempt to steal, honor that belongs to those who fought for this Nation in battle. See Snyder v. Phelps, 562 U. S. ___ (2011) (hateful protests directed at the funeral of a serviceman who died in Iraq). Here the statement that the speaker held the Medal was an intended, undoubted lie.

It is right and proper that Congress, over a century ago, established an award so the Nation can hold in its high- est respect and esteem those who, in the course of carrying out the supreme and noble duty of contributing to the defense of the rights and honor of the nation, Selective Draft Law Cases, 245 U. S. 366, 390 (1918) , have acted with extraordinary honor. And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought. The Government contends the criminal prohibition is a proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment. By this measure, the statutory provisions under which respondent was convicted must be held invalid, and his conviction must be set aside. I Respondents claim to hold the Congressional Medal of Honor was false. There is no room to argue about in-terpretation or shades of meaning. On this premise, respondent violated 704(b); and, because the lie concerned the Congressional Medal of Honor, he was subject to an enhanced penalty under subsection (c). Those statutory provisions are as follows: (b) False Claims About Receipt of Military Decorations or Medals.Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States . . . shall be fined under this title, imprisoned not more than six months, or both. (c) Enhanced Penalty for Offenses Involving Congressional Medal of Honor. (1) In General.If a decoration or medal involved in an offense under subsection (a) or (b) is a Congressional Medal of Honor, in lieu of the punishment provided in that subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both. Respondent challenges the statute as a content-based suppression of pure speech, speech not falling within any of the few categories of expression where content-based regulation is permissible. The Government defends the statute as necessary to preserve the integrity and purpose of the Medal, an integrity and purpose it contends are compromised and frustrated by the false statements the statute prohibits. It argues that false statements have no First Amendment value in themselves, and thus are protected only to the extent needed to avoid chilling fully protected speech. Brief for United States 18, 20. Al-though the statute covers respondents speech, the Government argues that it leaves breathing

room for pro-tected speech, for example speech which might criticize the idea of the Medal or the importance of the military. The Governments arguments cannot suffice to save the statute. II [A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). As a result, the Constitution demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 660(2004) . In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Court has rejected as startling and dangerous a free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits. United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 7). Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories [of expression] long familiar to the bar, Id., at ___ (slip op., at 5) (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)). Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); obscenity, see, e.g., Miller v. California, 413 U. S. 15 (1973) ; defamation, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (imposing some limits on liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949) ; so-called fighting words, see Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) ; child pornography, see New York v. Ferber, 458 U. S. 747 (1982) ; fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) ; true threats, see Watts v. United States, 394 U. S. 705 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U. S. 697,716 (1931) , although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). These categories have a historical foundation in the Courts free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules. Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private con-versation, expression

the First Amendment seeks to guarantee. See Sullivan, supra, at 271 (Th[e] erroneous statement is inevitable in free debate). The Government disagrees with this proposition. It cites language from some of this Courts precedents to support its contention that false statements have no value and hence no First Amendment protection. See also Brief for Eugene Volokh et al. as Amici Curiae 2 11. These isolated statements in some earlier decisions do not support the Governments submission that false statements, as a general rule, are beyond constitutional protection. That conclusion would take the quoted language far from its proper context. For instance, the Court has stated [f]alse statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas, Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 52 (1988) , and that false statements are not protected by the First Amendment in the same manner as truthful statements, Brown v. Hartlage, 456 U. S. 4561 (1982). See also, e.g., Virginia Bd. of Pharmacy, supra, at 771 (Untruthful speech, commercial or otherwise, has never been protected for its own sake); Herbert v. Lando, 441 U. S. 153, 171 (1979) (Spreading false information in and of itself carries no First Amendment credentials); Gertz, supra, at 340 ([T]here is no constitutional value in false statements of fact); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) ([T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection). These quotations all derive from cases discussing def-amation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. See Brief for United States 1819. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside theFirst Amendment. The statement must be a knowing or reckless falsehood. See Sullivan, supra, at 280 (prohibiting recovery of damages for a defamatory falsehood made about a public official unless the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not); see also Garrison, supra, at 73 ([E]ven when the utterance is false, the great principles of the Constitution which secure freedom of expression . . . preclude attaching adverse consequences to any except the knowing or reckless falsehood); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620 (2003) (False statement alone does not subject a fundraiser to fraud liability). The Government thus seeks to use this principle for a new purpose. It seeks to convert a rule that limits liability even in defamation cases where the law permits recovery for tortious wrongs into a rule that expands liability in a different, far greater realm of

discourse and expression. That inverts the rationale for the exception. The requirements of a knowing falsehood or reckless disregard for the truth as the condition for recovery in certain defamation cases exists to allow more speech, not less. A rule designed to tolerate certain speech ought not blossom to become a rationale for a rule restricting it. The Government then gives three examples of regulations on false speech that courts generally have found per-missible: first, the criminal prohibition of a false statement made to a Government official, 18 U. S. C. 1001; second, laws punishing perjury; and third, prohibi-tions on the false representation that one is speaking as a Government official or on behalf of the Government, see, e.g., 912; 709. These restrictions, however, do not establish a principle that all proscriptions of false statements are exempt from exactingFirst Amendment scrutiny. The federal statute prohibiting false statements to Government officials punishes whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government . . . makes any mate-rially false, fictitious, or fraudulent statement or representation. 1001. Section 1001s prohibition on false statements made to Government officials, in communications concerning official matters, does not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context. The same point can be made about what the Court has confirmed is the unquestioned constitutionality of perjury statutes, both the federal statute, 1623, and its state-law equivalents. United States v. Grayson, 438 U. S. 41, 54 (1978) . See also Konigsberg v. State Bar of Cal., 366 U. S. 36, n. 10 (1961). It is not simply because perjured statements are false that they lack First Amendment protection. Perjured testimony is at war with justice because it can cause a court to render a judgment not resting on truth. In re Michael, 326 U. S. 224, 227 (1945) . Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system. See United States v. Dunnigan, 507 U. S. 87, 97 (1993) (To uphold the integrity of our trial system . . . the constitutionality of perjury statutes is unquestioned). Unlike speech in other contexts, testi-mony under oath has the formality and gravity necessary to remind the witness that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others. Sworn testimony is quite distinct from lies not spoken under oath and sim-ply intended to puff up oneself. Statutes that prohibit falsely representing that one is speaking on behalf of the Government, or that prohibit im-personating a Government officer, also protect the integrity of Government processes, quite apart from merely restricting false speech. Title18 U. S. C. 912, for ex-ample, prohibits impersonating an officer or employee of the United States. Even if that statute may not require proving an actual financial or property loss resulting from the deception, the statute is itself confined to maintain[ing] the general

good repute and dignity of . . . government . . . service itself. United States v. Lepowitch, 318 U. S. 702, 704 (1943) (internal quotation marks omitted). The same can be said for prohibitions on the unauthorized use of the names of federal agencies such as the Federal Bureau of Investigation in a manner calculated to convey that the communication is approved, see 709, or using words such as Federal or United States in the collection of private debts in order to convey that the communication has official authorization, see 712. These examples, to the extent that they implicate fraud or speech integral to criminal conduct, are inapplicable here. As our law and tradition show, then, there are instances in which the falsity of speech bears upon whether it is protected. Some false speech may be prohibited even if analogous true speech could not be. This opinion does not imply that any of these targeted prohibitions are somehow vulnerable. But it also rejects the notion that false speech should be in a general category that is presumptively unprotected. Although the First Amendment stands against any freewheeling authority to declare new categories of speech outside the scope of the First Amendment, Stevens, 559 U. S., at ___ (slip op., at 9), the Court has acknowledged that perhaps there exist some categories of speech that have been historically unprotected . . . but have not yet been specifically identified or discussed . . . in our case law. Ibid. Before exempting a category of speech from the normal prohibition on content-based re-strictions, however, the Court must be presented with per-suasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, Brown v. Entertainment Merchants Assn., 564 U. S. ___, ___ (2011) (slip op., at 4). The Government has not demonstrated that false statements generally should constitute a new category of unprotected speech on this basis. III The probable, and adverse, effect of the Act on free- dom of expression illustrates, in a fundamental way, the reasons for the Laws distrust of content-based speech prohibitions. The Act by its plain terms applies to a false statement made at any time, in any place, to any person. It can be assumed that it would not apply to, say, a theatrical performance. See Milkovich v. Lorain Journal Co., 497 U. S. 1, 20 (1990) (recognizing that some statements nominally purporting to contain false facts in reality cannot reasonably be interpreted as stating actual facts about an individual (internal quotation marks and brackets omitted)). Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so en-tirely without regard to whether the lie was made for the

purpose of material gain. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522540 (1987) (prohibiting a nonprofit corporation from exploiting the commercial magnetism of the word Olym-pic when organizing an athletic competition (internal quotation marks omitted)). Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceanias Ministry of Truth. See G. Orwell, Nineteen EightyFour (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Courts cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom. IV The previous discussion suffices to show that the Act conflicts with free speech principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, see Stevens, 559 U. S., at ___ (slip op., at 7) (The First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits), but rather has applied the most exacting scrutiny. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642(1994) . Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny. The Government is correct when it states military medals serve the important public function of recognizing and expressing gratitude for acts of heroism and sacrifice in military service, and also foste[r] morale, mission accomplishment and esprit de corps among service members. Brief for United States 37, 38. General George Washington observed that an award for valor would cherish a virtuous ambition in . . . soldiers, as well as foster and encourage every species of military merit. General Orders of George

Washington Issued at Newburgh on the Hudson, 17821783 (Aug. 7, 1782), p. 30 (E. Boynton ed. 1883). Time has not diminished this idea. In periods of war and peace alike public recognition of valor and noble sacrifice by men and women in uniform reinforces the pride and national resolve that the military relies upon to fulfill its mission. These interests are related to the integrity of the military honors system in general, and the Congressional Medal of Honor in particular. Although millions have served with brave resolve, the Medal, which is the highest military award for valor against an enemy force, has been given just 3,476 times. Established in 1861, the Medal is reserved for those who have distinguished themselves conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty. 10 U. S. C. 3741 (Army), 6241 (Navy and Marine Corps), 8741 (Air Force), 14 U. S. C. 491 (Coast Guard). The stories of those who earned the Medal inspire and fascinate, from Dakota Meyer who in 2009 drove five times into the midst of a Taliban ambush to save 36 lives, see Curtis, President Obama Awards Medal of Honor to Dakota Meyer, The White House Blog (Sept. 15, 2011) (all Internet materials as visited June 25, 2012, and available in Clerk of Courts case file); to Desmond Doss who served as an army medic on Okinawa and on June 5, 1945, rescued 75 fellow soldiers, and who, after being wounded, gave up his own place on a stretcher so others could be taken to safety, see Americas Heroes 8890 (J. Willbanks ed. 2011); to William Carney who sustained multiple gunshot wounds to the head, chest, legs, and arm, and yet carried the flag to ensure it did not touch the ground during the Union armys assault on Fort Wagner in July 1863, id., at 4445. The rare acts of courage the Medal celebrates led President Truman to say he would rather have that medal round my neck than . . . be president of the United States. Truman Gives No. 1 Army Medal to 15 Heroes, Washington Post, Oct. 13, 1945, p. 5. The Governments interest in protecting the integrity of the Medal of Honor is beyond question. But to recite the Governments compelling interests is not to end the matter. The First Amendment requires that the Governments chosen restriction on the speech at issue be actually necessary to achieve its interest. En-tertainment Merchants Assn., 564 U. S., at ___ (slip op., at 12). There must be a direct causal link between the restriction imposed and the injury to be prevented. See ibid. The link between the Governments interest in protecting the integrity of the military honors system and the Acts restriction on the false claims of liars like respondent has not been shown. Although appearing to concede that an isolated misrepresentation by itself would not tarnish the meaning of military honors, the Government asserts it is common sense that false representations have the tendency to dilute the value and meaning of military awards, Brief for United States 49, 54. It must be acknowledged that when a pretender claims the Medal to be his own, the lie might harm the Government by demeaning the high purpose of the award, diminishing the honor it confirms, and creating the appearance that the Medal is awarded more often than is true. Furthermore, the lie may offend the true holders of the Medal. From one perspective it in-

sults their bravery and high principles when falsehood puts them in the unworthy company of a pretender. Yet these interests do not satisfy the Governments heavy burden when it seeks to regulate protected speech. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803,818 (2000) . The Government points to no evidence to support its claim that the publics general perception of military awards is diluted by false claims such as those made by Alvarez. Cf. Entertainment Merchants Assn., supra, at ______ (slip op., at 1213) (analyzing and rejecting the findings of research psychologists demonstrating the causal link between violent video games and harmful effects on children). As one of the Governments amici notes there is nothing that charlatans such as Xavier Alva rez can do to stain [the Medal winners] honor. Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if true holders of the Medal might experience anger and frustration. The lack of a causal link between the Governments stated interest and the Act is not the only way in which the Act is not actually necessary to achieve the Governments stated interest. The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements Alvarez was perceived as a phony, 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation, see, e.g., Bigham, Water District Rep Requests Alvarez Resign in Wake of False Medal Claim, San Bernardino Cty., CA, The Sun (May 21, 2008). There is good reason to believe that a similar fate would befall other false claimants. See Brief for Reporters Committee for Freedom of the Press et al. as Amici Curiae 3033 (listing numerous examples of public exposure of false claimants). Indeed, the outrage and contempt expressed for respondents lies can serve to reawaken and reinforce the publics respect for the Medal, its recipients, and its high purpose. The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the proposition that the public will be misled by the claims of charlatans or become cynical of those whose heroic deeds earned them the Medal by right. See, e.g., Well Done, Washington Post, Feb. 5, 1943, p. 8 (reporting on Pres-ident Roosevelts awarding the Congressional Medal of Honor to Maj. Gen. Alexander Vandegrift); Devroy, Medal of Honor Given to 2 Killed in Somalia, Washington Post, May 24, 1994, p. A6 (reporting on President Clintons awarding the Congressional Medal of Honor to two special forces soldiers killed during operations in Somalia). The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the

enlightened; to the straight-out lie, the simple truth. See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be ap-plied is more speech, not enforced silence). The theory of our Constitution is that the best test of truth is the power of the thought to get itself accepted in the competition of the market, Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through contentbased mandates. Expressing its concern that counterspeech is insuf- ficient, the Government responds that because some military records have been lost . . . some claims [are] un-verifiable, Brief for United States 50. This proves little, however; for without verifiable records, successful criminal prosecution under the Act would be more difficult in any event. So, in cases where public refutation will not serve the Governments interest, the Act will not either. In addition, the Government claims that many [false claims] will remain unchallenged. Id., at 55. The Government provides no support for the contention. And in any event, in order to show that public refutation is not an adequate alternative, the Government must demonstrate that unchallenged claims undermine the publics perception of the military and the integrity of its awards system. This showing has not been made. It is a fair assumption that any true holders of the Medal who had heard of Alvarezs false claims would have been fully vindicated by the communitys expression of outrage, showing as it did the Nations high regard for the Medal. The same can be said for the Governments interest. The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradi-tion. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication. In addition, when the Government seeks to regulate protected speech, the restriction must be the least restrictive means among available, effective alternatives. Ashcroft, 542 U. S., at 666. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Governmentcreated database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individuals have already created databases similar to this, see Brief

for Respondent 25, and at least one data- base of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the Department of Defense investigated the feasibility of establishing a database in 2008, the Government concluded that such a database would be impracticable and insuf-ficiently comprehensive. Brief for United States 55. Without more explanation, it is difficult to assess the Gov-ernments claim, especially when at least one database of Congressional Medal of Honor winners already exists. The Government may have responses to some of these criticisms, but there has been no clear showing of the necessity of the statute, the necessity required by exacting scrutiny. * * *

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondents statements anything but contemptible, his right to make those statements is protected by the Constitutions guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment. The judgment of the Court of Appeals is affirmed. It is so ordered.

TOP Concurrence SUPREME COURT OF THE UNITED STATES _________________ No. 11210 _________________ UNITED STATES, PETITIONER v. XAVIER ALVAREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[June 28, 2012]

Justice Breyer, with whom Justice Kagan joins, con- curring in the judgment. I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at 410. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways. I In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifications, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provisions countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so. Ultimately the Court has had to determine whether the statute works speech-related harm that is out of proportion to its justifications. Sometimes the Court has referred to this approach as intermediate scrutiny, sometimes as proportionality review, sometimes as an examination of fit, and sometimes it has avoided the application of any label at all. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622652 (1994) (intermediate scrutiny); Randall v. Sorrell, 548 U. S. 230,249 (2006) (plurality opinion) (proportionality); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989) (requiring a fit be- tween means and ends that is in proportion to the in- terest served ); In re R. M. J., 455 U. S. 191, 203 (1982) ([I]nterference with speech must be in proportion to the [substantial governmental] interest served); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty.,391 U. S. 563, 568 (1968) . Regardless of the label, some such approach is necessary if the First Amendment is to offer proper protection in the many instances in which a statute adversely affects constitutionally protected interests but warrants neither near-automatic condemnation (as strict scrutiny implies) nor near-automatic approval (as is implicit in rational basis review). See, e.g., Turner Broadcasting System, Inc., supra, at 641652 (must-carry cable regulations); Central Hudson Gas & Elec. Corp. v. Public Serv. Commn of N. Y., 447 U. S. 557, 566 (1980) (nonmisleading commercial speech); Burdick v. Takushi, 504 U. S. 428 434 (1992) (election regulation); Pickering, supra, at 568 (government employee speech); United States v. OBrien, 391 U. S. 367, 377 (1968) (application of generally appli- cable laws to expressive conduct). I have used the term proportionality to describe this

approach. Thompson v. Western States Medical Center, 535 U. S. 357, 388 (2002) (dissenting opinion); see also Bartnicki v. Vopper, 532 U. S. 514, 536 (2001) (concurring opinion); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377403 (2000) (concurring opinion). But in this case, the Courts term intermediate scrutiny describes what I think we should do. As the dissent points out, there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable dan- ger of suppressing truthful speech. Post, at 14. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law. The dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter. Such false factual statements are less likely than are true factual statements to make a valuable contribution to the marketplace of ideas. And the government often has good reasons to prohibit such false speech. See infra, at 57 (listing examples of statutes and doctrines regulating false factual speech). But its regulation can nonetheless threaten speech-related harms. Those circumstances lead me to apply what the Court has termed intermediate scrutiny here. II A The Stolen Valor Act makes it a crime falsely to represen[t] oneself to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States. 18 U. S. C. 704(b). I would read the statute favorably to the Government as criminalizing only false factual statements made with knowledge of their fal- sity and with the intent that they be taken as true. See Staples v. United States, 511 U. S. 600, 605(1994) (courts construe statutes in light of the background rules of the common law, . . . in which the requirement of some mens rea for a crime is firmly embedded); cf. New York Times Co. v. Sullivan, 376 U. S. 254280 (1964) ( First Amendment allows a public official to recover for defamation only upon a showing of actual malice ). As so interpreted the statute covers only lies. But although this interpretation diminishes the extent to which the statute endangers First Amendment values, it does not eliminate the threat. I must concede, as the Government points out, that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection. See, e.g., BE&K Constr. Co. v. NLRB, 536 U. S. 516, 531 (2002) ([F]alse statements may be unprotected for their own sake); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 52 (1988) (False statements of fact are particularly valueless); Gertz v. Robert Welch, Inc., 418 U. S.

323, 340 (1974) ([T]he erroneous statement of fact is not worthy of constitutional protection). But these judicial statements cannot be read to mean no protection at all. False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a childs innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth. See, e.g., 638 F. 3d 666, 673675 (CA9 2011) (Kozinski, J., concurring in denial of rehearing en banc) (providing numerous examples); S. Bok, Lying: Moral Choice in Public and Private Life (1999) (same); New York Times Co., supra, at 279, n. 19 (Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about the clearer perception and livelier impression of truth, produced by its collision with error (quoting J. Mill, On Liberty 15 (Blackwell ed. 1947))). Moreover, as the Court has often said, the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby chilling a kind of speech that lies at the First Amendments heart. See, e.g., Gertz, supra, at 340341. Hence, the Court emphasizes mens rea requirements that provide breathing room for more valuable speech by reducing an honest speakers fear that he may accidentally incur liability for speaking. Further, the pervasiveness of false statements, made for better or for worse motives, made thoughtlessly or de- liberately, made with or without accompanying harm, provides a weapon to a government broadly empowered to prosecute falsity without more. And those who are unpopular may fear that the government will use that weapon selectively, say by prosecuting a pacifist who sup- ports his cause by (falsely) claiming to have been a war hero, while ignoring members of other political groups who might make similar false claims. I also must concede that many statutes and common-law doctrines make the utterance of certain kinds of false statements unlawful. Those prohibitions, however, tend to be narrower than the statute before us, in that they limit the scope of their application, sometimes by requiring proof of specific harm to identifiable victims; sometimes by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur; and sometimes by limiting the prohibited lies to those that are particularly likely to produce harm.

Fraud statutes, for example, typically require proof of a misrepresentation that is material, upon which the victim relied, and which caused actual injury. See Restatement (Second) of Torts 525 (1976). Defamation statutes focus upon statements of a kind that harm the reputation of another or deter third parties from association or dealing with the victim. See id., 558, 559. Torts involving the intentional infliction of emotional distress (like torts involving placing a victim in a false light) concern falsehoods that tend to cause harm to a specific victim of an emotional-, dignitary-, or privacy-related kind. See id., 652E. Perjury statutes prohibit a particular set of false statementsthose made under oath while requiring a showing of materiality. See, e.g., 18 U. S. C. 1621. Statutes forbidding lying to a government official (not under oath) are typically limited to circumstances where a lie is likely to work particular and specific harm by interfering with the functioning of a government department, and those statutes also require a showing of materiality. See, e.g., 1001. Statutes prohibiting false claims of terrorist attacks, or other lies about the commission of crimes or catastrophes, require proof that substantial public harm be directly foreseeable, or, if not, involve false statements that are very likely to bring about that harm. See, e.g., 47 CFR 73.1217 (2011) (requiring showing of foreseeability and actual substantial harm); 18 U. S. C. 1038(a)(1) (prohibiting knowing false statements claiming that terrorist attacks have taken, are taking, or will take, place). Statutes forbidding impersonation of a public official typically focus on acts of impersonation, not mere speech, and may require a showing that, for example, someone was deceived into following a course [of action] he would not have pursued but for the deceitful conduct. United States v. Lepowitch, 318 U. S. 702, 704 (1943) ; see, e.g., 912 (liability attaches to [w]hoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States . . . and acts as such (emphasis added)). Statutes prohibiting trademark infringement present, perhaps, the closest analogy to the present statute. Trademarks identify the source of a good; and infringement causes harm by causing confusion among potential customers (about the source) and thereby diluting the value of the mark to its owner, to consumers, and to the econ- omy. Similarly, a false claim of possession of a medal or other honor creates confusion about who is entitled to wear it, thus diluting its value to those who have earned it, to their families, and to their country. But trademark statutes are focused upon commercial and promotional activities that are likely to dilute the value of a mark. Indeed, they typically require a showing of likely confusion, a showing that tends to assure that the feared harm will in fact take place. See 15 U. S. C. 1114(1)(a); KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U. S. 111, 117 (2004) ; see also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522540, 548 (1987) (upholding statute giving the United States Olympic Committee the right to prohibit certain commercial and promotional uses of the word Olympic).

While this list is not exhaustive, it is sufficient to show that few statutes, if any, simply prohibit without limitation the telling of a lie, even a lie about one particular matter. Instead, in virtually all these instances limitations of context, requirements of proof of injury, and the like, narrow the statute to a subset of lies where specific harm is more likely to occur. The limitations help to make certain that the statute does not allow its threat of liability or criminal punishment to roam at large, discouraging or forbidding the telling of the lie in contexts where harm is unlikely or the need for the prohibition is small. The statute before us lacks any such limiting features. It may be construed to prohibit only knowing and intentional acts of deception about readily verifiable facts within the personal knowledge of the speaker, thus reducing the risk that valuable speech is chilled. Supra, at 34. But it still ranges very broadly. And that breadth means that it creates a significant risk of First Amendment harm. As written, it applies in family, social, or other private contexts, where lies will often cause little harm. It also applies in political contexts, where although such lies are more likely to cause harm, the risk of censorious se- lectivity by prosecutors is also high. Further, given the potential haziness of individual memory along with the large number of military awards covered (ranging from medals for rifle marksmanship to the Congressional Medal of Honor), there remains a risk of chilling that is not completely eliminated by mens rea requirements; a speaker might still be worried about being prosecuted for a careless false statement, even if he does not have the intent required to render him liable. And so the prohibition may be applied where it should not be applied, for example, to bar stool braggadocio or, in the political arena, subtly but selectively to speakers that the Government does not like. These considerations lead me to believe that the statute as written risks significant First Amendment harm. B Like both the plurality and the dissent, I believe the statute nonetheless has substantial justification. It seeks to protect the interests of those who have sacrificed their health and life for their country. The statute serves this interest by seeking to preserve intact the countrys recognition of that sacrifice in the form of military honors. To permit those who have not earned those honors to claim otherwise dilutes the value of the awards. Indeed, the Nation cannot fully honor those who have sacrificed so much for their countrys honor unless those who claim to have received its military awards tell the truth. Thus, the statute risks harming protected interests but only in order to achieve a substantial countervailing objective. C We must therefore ask whether it is possible substantially to achieve the Governments objective in less burdensome ways. In my view, the answer to this question is yes. Some

potential First Amendment threats can be alleviated by interpreting the statute to require knowledge of falsity, etc. Supra, at 34. But other First Amendment risks, primarily risks flowing from breadth of coverage, remain. Supra, at 45, 78. As is indicated by the limitations on the scope of the many other kinds of statutes regulating false factual speech, supra, at 57, it should be possible significantly to diminish or eliminate these remaining risks by enacting a similar but more finely tailored statute. For example, not all military awards are alike. Congress might determine that some warrant greater protection than others. And a more finely tailored statute might, as other kinds of statutes prohibiting false factual statements have done, insist upon a showing that the false statement caused specific harm or at least was material, or focus its coverage on lies most likely to be harmful or on contexts where such lies are most likely to cause harm. I recognize that in some contexts, particularly political contexts, such a narrowing will not always be easy to achieve. In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and consequently can more easily result in censorship of speakers and their ideas. Thus, the statute may have to be significantly narrowed in its applications. Some lower courts have upheld the constitutionality of roughly comparable but narrowly tailored statutes in political contexts. See, e.g., United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F. 3d 86, 93 (CA2 1997) (upholding against First Amendment challenge application of Lanham Act to a political organization); Treasure of the Committee to Elect Gerald D. Lostracco v. Fox, 150 Mich. App. 617, 389 N. W. 2d 446 (1986) (upholding under First Amendment statute prohibiting campaign material falsely claiming that one is an incumbent). Without expressing any view on the validity of those cases, I would also note, like the plurality, that in this area more accurate information will normally counteract the lie. And an accurate, publicly available register of military awards, easily obtainable by political opponents, may well adequately protect the integrity of an award against those who would falsely claim to have earned it. See ante, at 1718. And so it is likely that a more narrowly tailored statute combined with such informationdisseminating devices will effectively serve Congress end. The Government has provided no convincing explanation as to why a more finely tailored statute would not work. In my own view, such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective. That being so, I find the statute as presently drafted works disproportionate constitutional harm. It consequently fails intermediate scrutiny, and so violates the First Amendment. For these reasons, I concur in the Courts judgment.

TOP Dissent SUPREME COURT OF THE UNITED STATES _________________ No. 11210 _________________ UNITED STATES, PETITIONER v. XAVIER ALVAREZ
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[June 28, 2012]

Justice Alito, with whom Justice Scalia and Jus- tice Thomas join, dissenting. Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our countrys system of military honors and inflicting real harm on actual medal recipients and their families. Building on earlier efforts to protect the military awards system, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom of speech. The statute reaches only knowingly false statements about hard facts directly within a speakers per- sonal knowledge. These lies have no value in and of themselves, and proscribing them does not chill any valuable speech. By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law. I

The Stolen Valor Act makes it a misdemeanor to falsely represen[t] oneself as having been awarded a medal, decoration, or badge for service in the Armed Forces of the United States. 18 U. S. C. 704(b). Properly construed, this statute is limited in five significant respects. First, the Act applies to only a narrow category of false representations about objective facts that can almost always be proved or disproved with near certainty. Second, the Act concerns facts that are squarely within the speakers personal knowledge. Third, as the Government maintains, see Brief for United States 1517, and both the plurality, see ante, at 7, and the concurrence, see ante, at 3 (Breyer, J., concurring in judgment), seemingly accept, a conviction under the Act requires proof beyond a reasonable doubt that the speaker actually knew that the representation was false. 1 Fourth, the Act applies only to statements that could reasonably be interpreted as communicating actual facts; it does not reach dramatic performances, satire, parody, hyperbole, or the like. 2 Finally, the Act is strictly viewpoint neutral. The false statements proscribed by the Act are highly unlikely to be tied to any particular political or ideological message. In the rare cases where that is not so, the Act applies equally to all false statements, whether they tend to disparage or commend the Government, the military, or the system of mil- itary honors. The Stolen Valor Act follows a long tradition of efforts to protect our countrys system of military honors. When George Washington, as the commander of the Continental Army, created the very first honorary badges of distinction for service in our countrys military, he established a rigorous system to ensure that these awards would be received and worn by only the truly deserving. See General Orders of George Washington Issued at Newburgh on the Hudson, 17821783, p. 35 (E. Boynton ed. 1883) (reprint 1973) (requiring the submission of incontest- ible proof of singularly meritorious action to the Commander in Chief). Washington warned that anyone with the insolence to assume a badge that had not actually been earned would be severely punished. Id., at 34. Building on this tradition, Congress long ago made it a federal offense for anyone to wear, manufacture, or sell certain military decorations without authorization. See Act of Feb. 24, 1923, ch. 110, 42Stat. 1286 (codified as amended at 18 U. S. C. 704(a)). Although this Court has never opined on the constitutionality of that particular provision, we have said that 702, which makes it a crime to wear a United States military uniform without authorization, is a valid statute on its face. Schacht v. United States, 398 U. S. 58, 61(1970) . Congress passed the Stolen Valor Act in response to a proliferation of false claims concerning the receipt of military awards. For example, in a single year, more than 600 Virginia residents falsely claimed to have won the Medal of Honor. 3 An investigation of the 333 people listed in the online edition of Whos Who as having received a top military award revealed that fully a third of the claims could not be substantiated. 4 When the Library of Congress compiled oral histories for its Veterans History Project, 24 of the 49 individuals who identified themselves as Medal of Honor recipients had not actually

received that award. 5 The same was true of 32 individuals who claimed to have been awarded the Distinguished Service Cross and 14 who claimed to have won the Navy Cross.6 Notorious cases brought to Congress attention included the case of a judge who falsely claimed to have been awarded two Medals of Honor and displayed counterfeit medals in his courtroom; 7 a television networks military consultant who falsely claimed that he had received the Silver Star; 8 and a former judge advocate in the Marine Corps who lied about receiving the Bronze Star and a Purple Heart. 9 As Congress recognized, the lies proscribed by the Stolen Valor Act inflict substantial harm. In many instances, the harm is tangible in nature: Individuals often falsely represent themselves as award recipients in order to obtain financial or other material rewards, such as lucrative contracts and government benefits. 10 An investigation of false claims in a single region of the United States, for example, revealed that 12 men had defrauded the Department of Veterans Affairs out of more than $1.4 million in veterans benefits. 11 In other cases, the harm is less tangible, but nonetheless significant. The lies proscribed by the Stolen Valor Act tend to debase the distinctive honor of military awards. See Stolen Valor Act of 2005, 2, 120Stat. 3266, note following 18 U. S. C. 704 (finding that [f]raudulent claims surrounding the receipt of [military decorations and medals] damage the reputation and meaning of such decorations and medals). And legitimate award recipients and their families have expressed the harm they endure when an imposter takes credit for he- roic actions that he never performed. One Medal of Honor recipient described the feeling as a slap in the face of veterans who have paid the price and earned their medals. 12 It is well recognized in trademark law that the proliferation of cheap imitations of luxury goods blurs the signal given out by the purchasers of the originals. Landes & Posner, Trademark Law: An Economic Perspective, 30 J. Law & Econ. 265, 308 (1987). In much the same way, the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our countrys top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags. Cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522541 (1987) (rejecting First Amendment challenge to law prohibiting certain unauthorized uses of the word Olympic and recognizing that such uses harm the U. S. Olympic Committee by lessening the distinctiveness of the term). Both the plurality and Justice Breyer argue that Congress could have preserved the integrity of military honors by means other than a criminal prohibition, but Congress had ample reason to believe that alternative approaches would not be adequate. The chief alternative that is recommended is the compilation and release of a comprehensive list or database of actual medal recipients. If the public could readily access such a resource, it is argued,

imposters would be quickly and easily exposed, and the proliferation of lies about military honors would come to an end. This remedy, unfortunately, will not work. The Department of Defense has explained that the most that it can do is to create a database of recipients of certain top military honors awarded since 2001. See Office of Undersecretary of Defense, Report to the Senate and House Armed Services Committees on a Searchable Military Valor Decorations Database 4 5 (2009). 13 Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls counterspeech. Ante, at 15. Without the requisite database, many efforts to refute false claims may be thwarted, and some legitimate award recipients may be erroneously attacked. In addition, a steady stream of stories in the media about the exposure of imposters would tend to increase skepticism among members of the public about the entire awards system. This would only exacerbate the harm that the Stolen Valor Act is meant to prevent. The plurality and the concurrence also suggest that Congress could protect the system of military honors by enacting a narrower statute. The plurality recommends a law that would apply only to lies that are intended to secure moneys or other valuable considerations. Ante, at 11. In a similar vein, the concurrence comments that a more finely tailored statute might . . . insist upon a showing that the false statement caused specific harm. Ante, at 9 (opinion of Breyer, J.). But much damage is caused, both to real award recipients and to the system of mili- tary honors, by false statements that are not linked to any financial or other tangible reward. Unless even a small financial losssay, a dollar given to a homeless man falsely claiming to be a decorated veteranis more important in the eyes of the First Amendment than the damage caused to the very integrity of the military awards system, there is no basis for distinguishing between the Stolen Valor Act and the alternative statutes that the plurality and concurrence appear willing to sustain. Justice Breyer also proposes narrowing the statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it eventually passes a law that draws the line in just the right place. II A Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 612 (2003) (Like other forms of public deception,

fraudulent charitable solicitation is unprotected speech); BE&K Constr. Co. v. NLRB, 536 U. S. 516, 531 (2002) ([F]alse statements may be unprotected for their own sake); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 52 (1988) (False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individuals reputation that cannot easily be repaired by counterspeech, however persuasive or effective); Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 776 (1984) (There is no constitutional value in false statements of fact (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323, 340 (1974) )); Bill John- sons Restaurants, Inc. v. NLRB, 461 U. S. 731, 743 (1983) ([F]alse statements are not immunized by the First Amendment right to freedom of speech); Brown v. Hartlage, 456 U. S. 45, 60 (1982) (Of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements); Herbert v. Lando, 441 U. S. 153,171 (1979) (Spreading false information in and of itself carries no First Amendmentcredentials); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) (Untruthful speech, commercial or otherwise, has never been protected for its own sake); Gertz, supra, at 340 ([T]he erroneous statement of fact is not worthy of constitutional protection); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967) ([T]he constitutional guarantees [of the First Amendment] can tolerate sanctions against calculated falsehood without significant impairment of their essential function); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) ([T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection). Consistent with this recognition, many kinds of false factual statements have long been proscribed without rais[ing] any Constitutional problem. United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 6) (quoting Chaplinsky v. New Hampshire, 315 U. S. 568 572 (1942)). Laws prohibiting fraud, perjury, and defamation, for example, were in existence when the First Amendment was adopted, and their constitutionality is now beyond question. See, e.g., Donaldson v. Read Magazine, Inc., 333 U. S. 178, 190 (1948) (explaining that the governments power to protect people against fraud has always been recognized in this country and is firmly established); United States v. Dunnigan, 507 U. S. 87, 97 (1993) (observing that the constitutionality of perjury statutes is unquestioned); Beauharnais v. Illinois, 343 U. S. 250, 256 (1952) (noting that the prevention and punishment of libel have never been thought to raise any Constitutional problem). We have also described as falling outside the First Amendments protective shield certain false factual statements that were neither illegal nor tortious at the time of the Amendments adoption. The right to freedom of speech has been held to permit recovery for the intentional infliction of emotional distress by means of a false statement, see Falwell, supra, at 56, even though that tort did not enter our law until the late 19th century, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 12, p. 60, and n. 47. (5th ed. 1984) (hereinafter Prosser and Keeton). And in Hill,

supra, at 390, the Court concluded that the free speech right allows recovery for the even more modern tort of false-light invasion of privacy, see Prosser and Keeton 117, at 863. In line with these holdings, it has long been assumed that the First Amendment is not offended by prominent criminal statutes with no close common-law analog. The most well known of these is probably 18 U. S. C. 1001, which makes it a crime to knowingly and willfully make any materially false, fictitious, or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States. Unlike perjury, 1001 is not limited to statements made under oath or before an official government tribunal. Nor does it require any showing of pecuniary or property loss to the government. United States v. Gilliland, 312 U. S. 86, 93(1941) . Instead, the statute is based on the need to protect agencies from the perversion which might result from the deceptive practices described. Ibid. (emphasis added). Still other statutes make it a crime to falsely represent that one is speaking on behalf of, or with the approval of, the Federal Government. See, e.g., 18 U. S. C. 912 (making it a crime to falsely impersonate a federal officer); 709 (making it a crime to knowingly use, without authorization, the names of enumerated federal agencies, such as Federal Bureau of Investigation, in a manner reasonably calculated to convey the impression that a communication is approved or authorized by the agency). We have recognized that 912, like 1001, does not require a showing of pecuniary or property loss and that its purpose is to maintain the general good repute and dignity of Government service. United States v. Lepowitch, 318 U. S. 702, 704 (1943) (quoting United States v. Barnow, 239 U. S. 74, 80 (1915) ). All told, there are more than 100 federal criminal statutes that punish false statements made in connection with areas of federal agency concern. See United States v. Wells, 519 U. S. 482507, and nn. 810 (1997) (Stevens, J., dissenting) (citing at least 100 federal false statement statutes in the United States Code). These examples amply demonstrate that false statements of fact merit no First Amendment protection in their own right. 14 It is true, as Justice Breyer notes, that many in our society either approve or condone certain discrete categories of false statements, including false statements made to prevent harm to innocent victims and so-called white lies. See ante, at 4. But respondents false claim to have received the Medal of Honor did not fall into any of these categories. His lie did not prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a childs innocence. Ibid. Nor did his lie stop a panic or otherwise preserve calm in the face of danger or further philosophical or scientific debate. Ibid. Respondents claim, like all those covered by the Stolen Valor Act, served no valid purpose. Respondent and others who join him in attacking the Stolen Valor Act take a different view. Respondents brief features a veritable paean to lying. According to respondent, his lie about the Medal of Honor was nothing out of the ordinary for 21st-century Americans. Everyone lies, he says. Brief for Respondent 10. We lie all the time. Ibid. [H]uman

beings are constantly forced to choose the persona we present to the world, and our choices nearly always involve intentional omissions and misrepresentations, if not outright deception. Id., at 39. An academic amicus tells us that the First Amendment protects the right to construct self-aggrandizing fabrications such as having been awarded a military decoration. Brief for Jonathan D. Varat as Amicus Curiae 5. This radical interpretation of the First Amendment is not supported by any precedent of this Court. The lies covered by the Stolen Valor Act have no intrinsic value and thus merit no First Amendment protection unless their prohibition would chill other expression that falls within the Amendments scope. I now turn to that question. B While we have repeatedly endorsed the principle that false statements of fact do not meritFirst Amendment protection for their own sake, we have recognized that it is sometimes necessary to exten[d] a measure of strategic protection to these statements in order to ensure sufficient breathing space for protected speech. Gertz, 418 U. S., at 342 (quoting NAACP v. Button, 371 U. S. 415, 433 (1963) ). Thus, in order to prevent the chilling of truthful speech on matters of public concern, we have held that liability for the defamation of a public official or figure requires proof that defamatory statements were made with knowledge or reckless disregard of their falsity. See New York Times Co. v. Sullivan, 376 U. S. 254280 (1964) (civil liability); Garrison, 379 U. S., at 7475 (criminal liability). This same requirement applies when public officials and figures seek to recover for the tort of intentional infliction of emotional distress. See Falwell, 485 U. S., at 5556. And we have imposed [e]xacting proof requirements in other contexts as well when necessary to ensure that truthful speech is not chilled. Madigan, 538 U. S., at 620 (complainant in a fraud action must show that the defendant made a knowingly false statement of material fact with the intent to mislead the listener and that he succeeded in doing so); see also BE&K Constr., 536 U. S., at 531 (regulation of baseless lawsuits limited to those that are both objectively baseless and subjectively motivated by an unlawful purpose); Hartlage, 456 U. S., at 61 (sustaining as-applied First Amendment challenge to law prohibiting certain factual misstatements in the course of political debate where there had been no showing that the disputed statement was made other than in good faith and without knowledge of its falsity, or . . . with reckless disregard as to whether it was false or not). All of these proof requirements inevitably have the effect of bringing some false factual statements within the protection of the First Amendment, but this is justified in order to prevent the chilling of other, valuable speech. These examples by no means exhaust the circumstances in which false factual statements enjoy a degree of instrumental constitutional protection. On the contrary, there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other

matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth. Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Todays accepted wisdom sometimes turns out to be mistaken. And in these contexts, [e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about the clearer perception and livelier impression of truth, produced by its collision with error. Sullivan, supra, at 279, n. 19 (quoting J. Mill, On Liberty 15 (R. McCallum ed. 1947)). Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends. Statements about history illustrate this point. If some false statements about historical events may be banned, how certain must it be that a statement is false before the ban may be upheld? And who should make that calculation? While our cases prohibiting viewpoint discrimination would fetter the states power to some degree, see R. A. V. v. St. Paul, 505 U. S. 377390 (1992) (explaining that the First Amendment does not permit the government to engage in viewpoint discrimination under the guise of regulating unprotected speech), the potential for abuse of power in these areas is simply too great. In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect. Tell- ingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondents counsel conceded that the answer is none. Tr. of Oral Arg. 36. C Neither of the two opinions endorsed by Justices in the majority claims that the false statements covered by the Stolen Valor Act possess either intrinsic or instrumental value. Instead, those opinions appear to be based on the distinct concern that the Act suffers from overbreadth. See ante, at 10 (plurality opinion) (the Act applies to personal, whispered conversations within a home); ante, at 8 (Breyer, J., concurring in judgment) (the Act applies in family, social, or other private contexts and in political contexts). But to strike down a statute on the basis that it is overbroad, it is necessary to show that the statutes overbreadth [is] substantial, not only in an absolute sense, but also relative to [its] plainly legitimate sweep. United States v. Williams, 553 U. S. 285, 292 (2008) ; see

also ibid. (noting that this requirement has been vigorously enforced). The plurality and the concurrence do not even attempt to make this showing. The plurality additionally worries that a decision sustaining the Stolen Valor Act might prompt Congress and the state legislatures to enact laws criminalizing lies about an endless list of subjects. Ante, at 11. The plurality apparently fears that we will see laws making it a crime to lie about civilian awards such as college degrees or certificates of achievement in the arts and sports. This concern is likely unfounded. With very good reason, military honors have traditionally been regarded as quite different from civilian awards. Nearly a century ago, Congress made it a crime to wear a military medal without authorization; we have no comparable tradition regarding such things as Super Bowl rings, Oscars, or Phi Beta Kappa keys. In any event, if the pluralitys concern is not entirely fanciful, it falls outside the purview of the First Amendment. The problem that the plurality foreseesthat legislative bodies will enact unnecessary and overly intrusive criminal lawsapplies regardless of whether the laws in question involve speech or nonexpressive conduct. If there is a problem with, let us say, a law making it a criminal offense to falsely claim to have been a high school valedictorian, the problem is not the suppression of speech but the misuse of the criminal law, which should be reserved for conduct that inflicts or threatens truly serious societal harm. The objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not theFirst Amendment. Not every foolish law is unconstitutional. The Stolen Valor Act represents the judgment of the peoples elected representatives that false statements about military awards are very different from false statements about civilian awards. Certainly this is true with respect to the high honor that respondent misappropri- ated. Respondent claimed that he was awarded the Medal of Honor in 1987 for bravery during the Iran hostage crisis. This singular award, however, is bestowed only on those members of the Armed Forces who distinguis[h] [themselves] conspicuously by gallantry and intrepidity at the risk of [their lives] above and beyond the call of duty. 10 U. S. C. 3741; see also 6241, 8741. More than half of the heroic individuals to have been awarded the Medal of Honor after World War I received it posthumously. 15Congress was entitled to conclude that falsely claiming to have won the Medal of Honor is qualitatively different from even the most prestigious civilian awards and that the misappropriation of that honor warrants criminal sanction. * * *

The Stolen Valor Act is a narrow law enacted to address an important problem, and it presents no threat to freedom of expression. I would sustain the constitutionality of the Act, and I therefore respectfully dissent.

NOTES
1

Although the Act does not use the term knowing or knowingly, we have explained that

criminal statutes must be construed in light of the background rules of the common law . . . in which the requirement of some mens rea for a crime is firmly embedded. Staples v. United States, 511 U. S. 600, 605 (1994) . The Acts use of the phrase falsely represents, moreover, connotes a knowledge requirement. See Blacks Law Dictionary 1022 (8th ed. 2004) (defining a misrepresentation or false representation to mean [t]he act of making a false or misleading assertion about something, usu. with the intent to deceive (emphasis added)).
2

See Blacks Law Dictionary, supra, at 1327 (defining representation to mean a

presentation of fact); see also Milkovich v. Lorain Journal Co., 497 U. S. 1, 20 (1990) (explaining that the Court has protected statements that cannot reasonably [be] interpreted as stating actual facts about an individual so that public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation (quoting Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 50 (1988) ; alteration in original)).
3

Colimore, Pinning Crime on Fake Heroes: N. J. Agent Helps Expose and Convict Those

with Bogus U. S. Medals, Philadelphia Inquirer, Feb. 11, 2004, http://articles.philly.com/2004-02-11/news/25374213_1_medals-military-impostersdistinguished-flying-cross (all Internet mate-rials as visited June 25, 2012, and available in Clerk of Courts casefile).
4

Crewdson, Claims of Medals Amount to Stolen Valor, Chicago Tribune, Oct. 26, 2008, Half of MOH Entries in Oral History Project Are Incorrect, Marine Corps Times, Oct. 1, Ibid. Young, His Honor Didnt Get Medal of Honor, Chicago Tribune, Oct. 21, 1994,

http://www.chicagotribune.com/news/local/chi-valor-oct25,0,4301227.story?page=1.
5

2007, 2007 WLNR 27917486.

6 7

http://articles.chicagotribune.com/1994-10-21/news/941021031 8_1_congressionalmedal-highest-fritz.
8

Rutenberg, At Fox News, the Colonel Who Wasnt, N. Y. Times, Apr. 29, 2002,

http://www.nytimes.com/2002/04/29/business/at-fox-news-the-colonel-who-wasnt.html?pagewanted=all&src=pm.

B. Burkett & G. Whitley, Stolen Valor: How the Vietnam Generation Was Robbed of Its Indeed, the first person to be prosecuted under the Stolen ValorAct apparently parlayed

Heroes and Its History 179 (1998).

10

his medals into lucrative security consulting contracts. Zambito, War Crime: FBI Targets Fake Heroes, New York Daily News, May 6, 2007, http://www.nydailynews.com/news/crime/war-crime-fbi-targets-fake-heroes-article1.249168.
11

Dept. of Justice, Northwest Crackdown on Fake Veterans in Operation Stolen Valor,

Sept. 21, 2007, http://www.justice.gov/usao/waw/ press/2007/sep/operationstolenvalor.html.

12

Cato, High Court Tussles With False Heroics: Free Speech or Fel-ony? Pittsburg Tribune

Review, Feb. 23, 2012, http://triblive.com/ usworld/nation/1034434-85/court-militarylaw-false-medals-supreme-valor-act-federal-free.

13

In addition, since the Department may not disclose the Social Security numbers or

birthdates of recipients, this database would be of limited use in ascertaining the veracity of a claim involving a person with a common name. Office of Undersecretary of Defense, Report, at 34.
14

The plurality rejects this rule. Although we have made clear that [u]ntruthful speech . . .

has never been protected for its own sake, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) , the most the plurality is willing to concede is that the falsity of speech bears upon whether it is protected, ante, at 9. This represents a dramaticand entirely unjustifieddeparture from the sound approach taken in past cases. Respondent and his supporting amici attempt to limit this rule to certain subsets of false statements, see, e.g., Brief for Respondent 53 (asserting that, at most, only falsity that is proved to cause specific harm is stripped of its First Amendmentprotection), but the examples described above belie that attempt. These examples show that the rule at least applies to (1) specific types of false statements that were neither illegal nor tortious in 1791 (the torts of intentional infliction of emotional distress and false-light invasion of privacy did not exist when the First Amendment was adopted); (2) false speech that does not cause pecuniary harm (the harm remedied by the torts of defamation, intentional infliction of emotional distress, and false-light invasion of privacy is often nonpecuniary in nature, as is the harm inflicted by statements that are illegal under 912 and 1001); (3) false speech that does not cause detrimental reliance (neither perjury laws nor many of the federal false statement statutes require that anyone actually rely on the false statement); (4) particular false statements that are not shown in court to have caused specific harm (damages can be presumed in defamation actions involving knowing or reckless falsehoods, and no showing of specific harm is required in prosecutions under many of the federal false statement statutes); and (5) false speech that does not cause harm to a specific individual (the purpose of many of the federal false statement statutes is to protect government processes).

15

See U. S. Army Center of Military History, Medal of Honor Statistics,

http://www.history.army.mil/html/moh/mohstats.html.

EN BANC
Re: Letter of the UP Law Faculty entitled Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court. A.M. No. 10-10-4-SC Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. Promulgated: October 19, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION
VILLARAMA, JR., J.: Plagiarism is the act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of ones own mind.[1]

Allegations of this intellectual offense were hurled by Atty. Harry L. Roque, Jr. and Atty. Romel R. Bagares against Justice Mariano C. Del Castillo for his ponencia in the case of Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010. In said case, the Court denied the petition for certiorari filed by Filipino comfort women to compel certain officers of the executive department[2] to espouse their claims for reparation and demand apology from the Japanese government for the abuses committed against them by the Japanese soldiers during World War II. Attys. Roque and Bagares represent the comfort women in Vinuya v. Executive Secretary, which is presently the subject of a motion for reconsideration. The authors and their purportedly plagiarized articles are: (1) Evan J. Criddle and Evan Fox-Decent from their article, A Fiduciary Theory of Jus Cogens published in 2009 in the Yale Journal of International Law; (2) Christian J. Tams from his book, Enforcing Erga Omnes Obligations in International Law published by the Cambridge University Press in 2005; and (3) Mark Ellis from his article, Breaking the Silence: On Rape as an International Crime published in the Case Western Reserve Journal of International Law in 2006. The allegations of plagiarism centered on Justice Del Castillos discussion of the principles of jus cogens and erga omnes. On August 9, 2010, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez, Susan D. Villanueva, and Dina D. Lucenario, members of the faculty of the University of the Philippines College of Law published a statement on the allegations of plagiarism and misrepresentation relative to the Courts decision in Vinuya v. Executive Secretary. Essentially, the faculty of the UP College of Law, headed by its dean, Atty. Marvic M.V.F.

Leonen, calls for the resignation of Justice Mariano C. Del Castillo in the face of allegations of plagiarism in his work. Notably, while the statement was meant to reflect the educators opinion on the allegations of plagiarism against Justice Del Castillo, they treated such allegation not only as an established fact, but a truth. In particular, they expressed dissatisfaction over Justice Del Castillos explanation on how he cited the primary sources of the quoted portions and yet arrived at a contrary conclusion to those of the authors of the articles supposedly plagiarized. Beyond this, however, the statement bore certain remarks which raise concern for the Court. The opening sentence alone is a grim preamble to the institutional attack that lay ahead. It reads:
An extraordinary act of injustice has again been committed against the brave Filipinas who had suffered abuse during a time of war.

The first paragraph concludes with a reference to the decision in Vinuya v. Executive Secretary as a reprehensible act of dishonesty and misrepresentation by the Highest Court of the land. The authors also not only assumed that Justice Del Castillo committed plagiarism, they went further by directly accusing the Court of perpetrating extraordinary injustice by dismissing the petition of the comfort women in Vinuya v. Executive Secretary. They further attempt to educate this Court on how to go about the review of the case. The insult to the members of the Court was aggravated by imputations of deliberately delaying the resolution of the said case, its dismissal on the basis of polluted sources, the Courts alleged indifference to the cause of petitioners, as well as the supposed alarming lack of concern of the members of the Court for even the most basic values of decency and respect. Paragraph 9 of their published statement reads,
But instead of acting with urgency on this case, the Court delayed its resolution for almost seven years, oblivious to the deaths of many of the petitioners seeking justice from the Court. When it dismissed the Vinuya petition based on misrepresented and plagiarized materials, the Court decided this case based on polluted sources . By doing so, the Supreme Court added insult to injury by failing to actually exercise its

power to urge and exhort the Executive Department to take up the claims of the Vinuya petitioners. Its callous disposition, coupled with false sympathy and nonchalance, belies (sic) [betrays] a more alarming lack of concern for even the most basic values of decency and respect. (Emphasis supplied).

The publication of a statement by the faculty of the UP College of Law regarding the allegations of plagiarism and misrepresentation in the Supreme Court was totally unnecessary, uncalled for and a rash act of misplaced vigilance. Of public knowledge is the ongoing investigation precisely to determine the truth of such allegations. More importantly, the motion for reconsideration of the decision alleged to contain plagiarized materials is still pending before the Court. We made it clear in the case of In re Kelly[3] that any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable. While most agree that the right to criticize the judiciary is critical to maintaining a free and democratic society, there is also a general consensus that healthy criticism only goes so far. Many types of criticism leveled at the judiciary cross the line to become harmful and irresponsible attacks. These potentially devastating attacks and unjust criticism can threaten the independence of the judiciary.[4] The court must insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice.[5] The Court could hardly perceive any reasonable purpose for the facultys less than objective comments except to discredit the April 28, 2010 Decision in the Vinuya case and undermine the Courts honesty, integrity and competence in addressing the motion for its reconsideration. As if the case on the comfort womens claims is not controversial enough, the UP Law faculty would fan the flames and invite resentment against a resolution that would not reverse the said decision. This runs contrary to their obligation as law professors and officers of the Court to be the first to uphold the dignity and authority of this Court, to which they owe fidelity according to the oath they have taken as attorneys, and not to promote distrust in the administration of justice.[6] Their actions likewise constitute violations of Canons 10, 11, and 13[7] and Rules 1.02 and 11.05[8] of the Code of Professional Responsibility.[9]

WHEREFORE, in light of the foregoing, Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan, Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V. Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te, Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera, Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R. Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul V. Vasquez, Susan D. Villanueva, and Dina D. Lucenario, members of the faculty of the University of the Philippines College of Law, are directed to SHOW CAUSE, within ten (10) days from receipt of a copy of this Resolution, why they should not be disciplined as members of the Bar for violation of Canons 10, 11, and 13 and Rules 1.02 and 11.05 of the Code of Professional Responsibility. Further, Dean Marvic M.V.F. Leonen is directed to SHOW CAUSE, within ten (10) days from receipt of this Resolution, why he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, 10.02 and 10.03 for submitting, through his letter dated August 10, 2010, during the pendency of G.R. No. 162230, Vinuya v. Executive Secretary and of the investigation before the Committee on Ethics and Ethical Standards, for the consideration of the Court En Banc, a dummy which is not a true and faithful reproduction of the purported statement, entitled Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court. Enclosed are copies of the said dummy and signed statement, respectively, attached to the said letter dated August 10, 2010 and to the Compliance dated August 31, 2010 filed by Roque & Butuyan Law Offices with the Committee on Ethics and Ethical Standards. Let this matter be DOCKETED as a regular administrative matter. Let service of this Resolution upon the above-named UP College of Law faculty members be effected by personal delivery. SO ORDERED.

MARTIN S. VILLARAMA, JR. Associate Justice

WE CONCUR:

RENATO C. CORONA Chief Justice

ANTONIO T. CARPIO Associate Justice

(On leave) CONCHITA CARPIO MORALES Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

(On leave) ROBERTO A. ABAD Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA Chief Justice

[1]

[2]

[3] [4]

[5] [6] [7]

On leave. Black, Henry Campbell, BLACKS LAW DICTIONARY, 5TH ed., St. Paul Minn., West Publishing Co., 1979, p. 1035. Executive Secretary Alberto G. Romulo, Secretary of Foreign Affairs Delia Domingo-Albert, Secretary Merceditas N. Gutierrez, and Solicitor General Alfredo L. Benipayo. 35 Phil. 944, 950-951 (1916). In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20 and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 434 . Teehankee v. Director of Prisons, 76 Phil 630 (1946). Id. CANON 10 A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal processes. CANON 11 A lawyer shall observe and maintain the respect due to the Courts and to judicial officers and should insist on similar conduct by others. CANON 13 A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance of influencing the Court.

[8]

[9]

Rule 1.02 A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system. Rule 11.05 A lawyer shall submit grievances against a judge to the proper authorities only. Promulgated by this Court on June 21, 1988.

Republic of the Philippines SUPREME COURT Manila EN BANC 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 authorized9to 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 bytransformation 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 InterAgency 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 orsubjective 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 DirectorGeneral 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 nonbinding 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. Raada37 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 regulate said advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of government, the legislature. Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly implemented by the DOH through the subject RIRR. Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the Milk Code. In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following: 1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage to "young children" or those from ages two years old and beyond: MILK CODE WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products; RIRR Section 2. Purpose These Revised Rules and Regulations are hereby promulgated to ensure the provision of safe and adequate nutrition for infants and young children by the promotion, protection and support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk supplements and related products when these are medically indicated and only when necessary, on the basis of adequate information and through appropriate marketing

SECTION 4(e). "Infant" means a person falling and distribution. within the age bracket of 0-12 months. Section 5(ff). "Young Child" means a person from the age of more than twelve (12) months up to the age of three (3) years (36 months). 2. The Milk Code recognizes that infant formula may be a proper and possible substitute for breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for infants from 0-6 months" and declares that "there is no substitute nor replacement for breastmilk": MILK CODE WHEREAS, in order to ensure that safe and adequate nutrition for infants is provided, there is a need to protect and promote breastfeeding and to inform the public about the proper use of breastmilk substitutes and supplements and related products through adequate, consistent and objective information and appropriate regulation of the marketing and distribution of the said substitutes, supplements and related products; RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon: a. Exclusive breastfeeding is for infants from 0 to six (6) months. b. There is no substitute or replacement for breastmilk.

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes intended for infants from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in the promotion of products within the scope of the Code, is vague: MILK CODE 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 interagency committee created herein pursuant to the applicable standards provided for in this Code. RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon: xxxx f. Advertising, promotions, or sponsor-ships of infant formula, breastmilk substitutes and other related products are prohibited. 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. 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. Section 15. Content of Materials. - The following shall not be included in advertising, promotional and marketing materials: a. Texts, pictures, illustrations or information which discourage or tend to undermine the benefits or superiority of breastfeeding or which idealize the use of breastmilk substitutes and milk supplements. In this connection, no pictures of babies and children together with their mothers, fathers, siblings, grandparents, other relatives or caregivers (or yayas) shall be used in any advertisements for infant formula and breastmilk supplements; b. The term "humanized," "maternalized," "close to mother's milk" or similar words in describing breastmilk substitutes or milk supplements; c. Pictures or texts that idealize the use of infant and milk formula. Section 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed. 4. The RIRR imposes additional labeling requirements not found in the Milk Code: MILK CODE RIRR

SECTION 10. Containers/Label.

Section 26. Content Each container/label shall contain such message, in both Filipino (a) Containers and/or labels shall be designed and English languages, and which message to provide the necessary information about the cannot be readily separated therefrom, relative appropriate use of the products, and in such a the following points: way as not to discourage breastfeeding. (a) The words or phrase "Important Notice" or "Government Warning" or their equivalent; (b) Each container shall have a clear, conspicuous and easily readable and understandable message in Pilipino or English (b) A statement of the superiority of printed on it, or on a label, which message can breastfeeding; not readily become separated from it, and which shall include the following points: (c) A statement that there is no substitute for breastmilk; (i) the words "Important Notice" or their equivalent; (d) A statement that the product shall be used only on the advice of a health worker as to the (ii) a statement of the superiority of need for its use and the proper methods of breastfeeding; use; (iii) a statement that the product shall be used (e) Instructions for appropriate prepara-tion, only on the advice of a health worker as to the and a warning against the health hazards of need for its use and the proper methods of inappropriate preparation; and use; and (f) The health hazards of unnecessary or (iv) instructions for appropriate preparation, improper use of infant formula and other and a warning against the health hazards of related products including information that inappropriate preparation. powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately. 5. The Milk Code allows dissemination of information on infant formula to health professionals; the RIRR totally prohibits such activity: MILK CODE SECTION 7. Health Care System. (b) No facility of the health care system shall be used for the purpose of promoting infant formula or other products within the scope of this Code. This Code does not, however, preclude the dissemination of information to health professionals as provided in Section 8(b). SECTION 8. Health Workers. (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 RIRR Section 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding, holding of or participating as speakers in classes or seminars for women and children activities and to avoid the use of these venues to market their brands or company names. SECTION 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase

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).

emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.

6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and continuing education of health professionals; RIRR absolutely forbids the same. MILK CODE SECTION 8. Health Workers (e) Manufacturers and distributors of products within the scope of this Code may assist in the research, scholarships and continuing education, of health professionals, in accordance with the rules and regulations promulgated by the Ministry of Health. RIRR Section 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon: i. Milk companies, and their representatives,should not form part of any policymaking body or entity in relation to the advancement of breasfeeding. SECTION 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding, holding of or participating as speakers in classes or seminars for women and children activitiesand to avoid the use of these venues to market their brands or company names. SECTION 32. Primary Responsibility of Health Workers - It is the primary responsibility of the health workers to promote, protect and support breastfeeding and appropriate infant and young child feeding. Part of this responsibility is to continuously update their knowledge and skills on breastfeeding. No assistance, support, logistics or training from milk companies shall be permitted. 7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it. MILK CODE SECTION 6. The General Public and Mothers. (f) Nothing herein contained shall prevent RIRR Section 51. Donations Within the Scope of This Code - Donations of products, materials, defined and covered under the Milk Code and these implementing rules and regulations, shall

donations from manufacturers and distributors be strictly prohibited. of products within the scope of this Code upon request by or with the approval of the Ministry Section 52. Other Donations By Milk of Health. Companies Not Covered by this Code. Donations of products, equipments, and the like, not otherwise falling within the scope of this Code or these Rules, given by milk companies and their agents, representatives, whether in kind or in cash, may only be coursed through the Inter Agency Committee (IAC), which shall determine whether such donation be accepted or otherwise. 8. The RIRR provides for administrative sanctions not imposed by the Milk Code. MILK CODE RIRR Section 46. Administrative Sanctions. The following administrative sanctions shall be imposed upon any person, juridical or natural, found to have violated the provisions of the Code and its implementing Rules and Regulations: a) 1st violation Warning; b) 2nd violation Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand (P50,000.00) Pesos, depending on the gravity and extent of the violation, including the recall of the offending product; c) 3rd violation Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in addition thereto, the recall of the offending product, and suspension of the Certificate of Product Registration (CPR); d) 4th violation Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the gravity and extent of the violation; and in addition thereto, the recall of the product, revocation of the CPR, suspension of the License to Operate (LTO) for one year; e) 5th and succeeding repeated violations Administrative Fine of One Million

(P1,000,000.00) Pesos, the recall of the offending product, cancellation of the CPR, revocation of the License to Operate (LTO) of the company concerned, including the blacklisting of the company to be furnished the Department of Budget and Management (DBM) and the Department of Trade and Industry (DTI); f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day shall be made for every day the violation continues after having received the order from the IAC or other such appropriate body, notifying and penalizing the company for the infraction. For purposes of determining whether or not there is "repeated" violation, each product violation belonging or owned by a company, including those of their subsidiaries, are deemed to be violations of the concerned milk company and shall not be based on the specific violating product alone. 9. The RIRR provides for repeal of existing laws to the contrary. The Court shall resolve the merits of the allegations of petitioner seriatim. 1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12 months old. Section 3 of the Milk Code states: SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto, of the following products: breastmilk substitutes, including infant formula; other milk products, foods and beverages, including bottle-fed complementary foods, when marketed or otherwise represented to be suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding bottles and teats. It also applies to their quality and availability, and to information concerning their use. Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of product being marketed to the public. The law treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct product categories. Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the normal nutritional requirements of infants up to between four to six months of age, and adapted to their physiological characteristics"; while under Section 4(b), bottle-fed complementary food refers to "any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant formula, when either becomes insufficient to satisfy the nutritional requirements of the infant." An infant under Section 4(e) is a person falling within the age bracket 0-12 months. It 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.

But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food being marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for that purpose."This section conspicuously lacks reference to any particular agegroup of children. Hence, the provision of the Milk Code cannot be considered exclusive for children aged 0-12 months. In other words, 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--visbreastmilk 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 1355 on "total effect" and 2656 of Rule VII of the RIRR 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. Petitioners 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 ------------------------------------------------------------------------Chairman Member Member Member

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 twentyfour (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 RIRRs 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 materials and activities for breast milk substitutes intended for infants and young children up to 24 months shall be allowed because this is the standard they tend to convey or give subliminal messages or impression undermine that breastmilk or breastfeeding x x x. We have to read Section 11 together with the other Sections because the other Section, Section 12, provides for the inter agency committee that is empowered to process and evaluate all the advertising and promotion materials. xxxx What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates the advertisement and the promotions of breastfeeding milk substitutes. xxxx Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the Inter-Agency Committee that processes and evaluates because there may be some information dissemination that are straight forward information dissemination. What the AO 2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your Honor. xxxx ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes? SOLICITOR GENERAL DEVANADERA: Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor. xxxx ASSOCIATE JUSTICE SANTIAGO: x x x Don't you think that the Department of Health overstepped its rule making authority when it totally banned advertising and promotion under Section 11 prescribed the total effect rule as well as the content of materials under Section 13 and 15 of the rules and regulations? SOLICITOR GENERAL DEVANADERA: Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the Inter-Agency Committee is under the Department of Health, Your Honor. xxxx ASSOCIATE JUSTICE NAZARIO: x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of breastmilk substitutes in the Revised Rules? SOLICITOR GENERAL DEVANADERA: 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 InterAgency 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 suchinformation 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 forwomen 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 thatresearch 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 substitutesupon 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. Petitioners 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. 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. 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, CarpioMorales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

Footnotes
1

Section 11, Rule 3, 1997 Rules of Civil Procedure which provides: Section 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor nonjoinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. x x x (Emphasis supplied)

Article 11. Implementation and monitoring 11.1 Governments should take action to give effect to the principles and aim of this Code, as appropriate to their social and legislative framework, including the adoption of national legislation, regulations or other suitable measures. For this purpose, governments should seek, when necessary, the cooperation of WHO, UNICEF and

other agencies of the United Nations system. National policies and measures, including laws and regulations, which are adopted to give effect to the principles and aim of this Code should be publicly stated, and should apply on the same basis to all those involved in the manufacture and marketing of products within the scope of this Code. xxxx
3

Petition, rollo, p. 12. G.R. No. 131719, May 25, 2004, 429 SCRA 81. Id. at 96-97. G.R. No. 135092, May 4, 2006, 489 SCRA 382. Id. at 396. Annex "G", Petitioner's Memorandum dated July 19, 2007.

Annexes "H", "I", and "J" of Petitioner's Memorandum executed by Wyeth Philippines, Inc., Bristol Myers Squibb (Phil.), Inc., and Abbott Laboratories, Inc., respectively.
10

a) The UN Convention on the Rights of the Child (CRC); b) the International Code of Marketing Breastmilk Substitutes (ICMBS); c) the International Covenant on Economic, Social and Cultural Rights (CSCR); d) the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); e) the Global Strategy for Infant and Young Child Nutrition (Global Strategy); and f) various resolutions adopted by the World Health Assembly.
11

Joaquin G. Bernas, S.J., Constitutional Structure and Powers of Government (Notes and Cases) Part I ( 2005).
12

Id. Joaquin G. Bernas, S.J., An Introduction to Public International Law, 2002 Ed., p. 57.

13

14

According to Fr. Bernas, the Austrian Constitution (Art. 9) and the Constitution of the Federal Republic of Germany (Art. 25) also use the incorporation method.
15

G.R. No. 139325, April 12, 2005, 455 SCRA 397. Id. at 421. Merlin M. Magallona, Fundamentals of Public International Law, 2005 Ed., p. 526. Id. at 525.

16

17

18

19

Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, April 19, 2007.

20

Taada v. Angara, 338 Phil. 546, 592 (1997).

21

Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2ndEd., p. 96.
22

Supra note 13, at 10-13. Minucher v. Court of Appeals, 445 Phil. 250, 269 (2003).

23

24

Article 57. The various specialized agencies, established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63. Such agencies thus brought into relationship with the United Nations are hereinafter referred to as specialized agencies.
25

Article 63. The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly. It may coordinate the activities of the specialized agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the United Nations.
26

Article 18. The functions of the Health Assembly shall be: (a) to determine the policies of the Organization x x x. (Emphasis supplied)
27

Article 21. The Health Assembly shall have authority to adopt regulations concerning: x x x (e) advertising and labeling of biological, pharmaceutical and similar products moving in international commerce. (Emphasis supplied)
28

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)
29

See David Fidler, Developments Involving SARS, International Law, and Infectious Disease Control at the Fifty-Sixth Meeting of the World Health Assembly, June 2003, ASIL.
30

In Resolution No. 34.22 (May 21, 1981), the WHA, acting under Article 23 of the WHO Constitution, adopted the ICBMS. (a) In Resolution No. 35.26 (May 1982), the WHA urged member states to implement the ICBMS as a "minimum requirement". (b) In Resolution No. 39.28 (May 16, 1986), the WHA requested the WHO Director General to direct the attention of member states to the fact that any food or drink given before complementary feeding is nutritionally required may interfere with the initiation or maintenance of breastfeeding and therefore should neither be promoted nor encouraged for us by infants during this period.

(c) In Resolution No. 43.3 (May 14, 1990), the WHA urged member states to protect and promote breastfeeding as an essential component of nutrition policies so as to enable infants to be exclusively breastfed during the first four to six months of life. (d) In Resolution No. 45.34 (May 14, 1992), the WHA urged member states to implement the targets of the Innocenti Declaration specifically, to give effect to the ICMBS. (e) In Resolution No. 46.7 (May 10, 1993), the WHA urged member states to strive to eliminate under-nutrition, malnutrition and nutritional deficiency among children. (f) In Resolution No. 47.5 (May 9, 1994), the WHA urged member states to ensure that there are no donations of supplies of breastmilk substitutes and other products covered by the ICMBS in any part of the health care system. (g) In Resolution No. 49.15 (May 25, 1996), the WHA urged member states to ensure that complementary foods are not marketed for or used in ways that undermine exclusive and sustained breastfeeding. (h) In Resolution No. 54.2 (May 2002), the WHA, noting that "despite the fact that the International Code of Marketing of Breastmilk Substitutes and relevant subsequent World Health Assembly resolutions state that there should be no advertising or other forms of promotion of products within its scope, new modern communication methods including electronic means, are currently increasingly being used to promote such products; and conscious of the need for the Codex Alimentarius Commission to take the International Code and subsequent relevant Health Assembly resolutions into consideration in dealing with health claims in the development of food standards and guidelines x x x," urged member states to develop new approaches to protect, promote and support exclusive breastfeeding for six months as a global public health recommendation. (i) In Resolution No. 55.25 (May 15, 2002), the WHA requested the Codex Alimentarius Commission to ensure that labelling of processed foods for infants and young children be consistent with the WHO policy under the ICBMS. (j) In Resolution No. 58.32 (May 25, 2005), the WHA urged member states to continue to protect and promote exclusive breastfeeding for six months. (k) In Resolution No. 59.21 (May 27, 2006), the WHA reiterated its support for the Gobal strategy for Infant and Young Child Feeding.
31

David Fidler, supra note 29.

32

Article 38. 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

33

Supra note 29.

34

Louis Henkin, et al., International Law, Cases and Materials, 2nd Ed., supra note 21, at 114136.
35

Supra note 19. 90 Phil. 70 (1951). Supra note 15. G.R. No. 159938, March 31, 2006, 486 SCRA 405.

36

37

38

39

Edward Kwakwa, Some Comments on Rulemaking at the World Intellectual Property Organization,www.law.duke.edu/shell/cite; September 13, 2007, 12:33, citing the 1999 WIPO Resolution Concerning Provisions on the Protection of Well-Known Marks, 2000 WIPO Recommendation Concerning Trademark Licenses, and 2001 WIPO Recommendation Concerning Provisions on the Protection of Marks and other Industrial Property Rights in Signs on the Internet.
40

Id. Supra note 29.

41

Section 2. Purpose These Revised Rules and Regulations are hereby promulgated to ensure the provision of safe and adequate nutrition for infants and young children by the promotion, protection and support of breastfeeding and by ensuring the proper use of breastmilk substitutes, breastmilk supplements and related products when these are medically indicated and only when necessary, on the basis of adequate information and through appropriate marketing and distribution. (Underscoring supplied)
42 43

Section 5(ff). "Young Child" means a person from the age of more than twelve (12) months up to the age of three (3) years (36 months). (Underscoring supplied)
44

G.R. No. 144218, July 14, 2006, 495 SCRA 42, 55. See pp. 19-21. See p. 21. Executive Order No. 292, made effective on November 23, 1989 by Proclamation No. 495.

45

46

47

48

Jacobson v. Massachusetts, 197 US 11 (1905); Beltran v. Secretary of Health G.R. No. 133640, November 25, 2005, 476 SCRA 168, 196; St. Lukess Medical Center Employees Association- AFW v.National Labor Relations Commission, G.R. No. 162053, March 7, 2007; Tablarin v. Gutierrez, G.R. No. L-78164, July 31, 1987, 152 SCRA 730, 741; Pollution Adjudication Board v. Court of Appeals, G.R. No. 93891, March 11, 1991, 195 SCRA 112, 123-124; Rivera v. Campbell, 34 Phil. 348, 353-354 (1916); Lorenzo v. Director of Health, 50 Phil. 595, 597 (1927).

49

As early as People v. Pomar, 46 Phil. 440, 445 (1924), we already noted that "advancing civilization is bringing within the scope of police power of the state today things which were not thought of as being with in such power yesterday. The development of civilization, the rapidly increasing population, the growth of public opinion, with [an increasing] desire on the part of the masses and of the government to look after and care for the interests of the individuals of the state, have brought within the police power of the state many questions for regulation which formerly were not so considered."
50

Act No. 2711, approved on March 10, 1917. Known then as Public Health Service Section 1, Chapter I, Title IX, Executive Order No. 292. Id. at Section 3. 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. (b) Manufacturers and distributors shall not be permitted to give, directly or indirectly, samples and supplies of products within the scope of this Code or gifts of any sort to any member of the general public, including members of their families, to hospitals and other health institutions, as well as to personnel within the health care system, save as otherwise provided in this Code. (c) There shall be no point-of-sale advertising, giving of samples or any other promotion devices to induce sales directly to the consumers at the retail level, such as special displays, discount coupons, premiums, special sales, bonus and tie-in sales for the products within the scope of this Code. This provision shall not restrict the establishment of pricing policies and practices intended to provide products at lower prices on a long-term basis. (d) Manufactures and distributors shall not distribute to pregnant women or mothers of infants any gifts or articles or utensils which may promote the use of breastmilk substitutes or bottlefeeding, nor shall any other groups, institutions or individuals distribute such gifts, utensils or products to the general public and mothers. (e) Marketing personnel shall be prohibited from advertising or promoting in any other manner the products covered by this Code, either directly or indirectly, to pregnant women or with mother of infants, except as otherwise provided by this Code. (f) Nothing herein contained shall prevent donations from manufacturers and distributors or products within the scope of this Code upon request by or with the approval of the Ministry of Health.

51

52

53

54

SECTION 7. Health Care System (a) The Ministry of Health shall take appropriate measures to encourage and promote breastfeeding. It shall provide objective and consistent information, training and advice to health workers on infant nutrition, and on their obligations under this Code. (b) No facility of the health care system shall be used for the purpose of promoting infant formula or other products within the scope of this Code. This Code does not, however, preclude the dissemination of information to health professionals as provided in Section 8(b). (c) Facilities of the health care system shall not be used for the display of products within the scope of this Code, or for placards or posters concerning such products. (d) The use by the health care system of "professional service" representatives, "mothercraft nurses" or similar personnel, provided or paid for by manufacturers or distributors, shall not be permitted. (e) In health education classes for mothers and the general public, health workers and community workers shall emphasize the hazards and risks of the improper use of breastmilk substitutes particularly infant formula. Feeding with infant formula shall be demonstrated only to mothers who may not be able to breastfeed for medical or other legitimate reasons. SECTION 8. Health Workers (a) Health workers shall encourage and promote breastfeeding and shall make themselves familiar with objectives and consistent information on maternal and infant nutrition, and with their responsibilities under this Code. (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). (c) No financial or material inducements to promote products within the scope of this Code shall be offered by manufacturers or distributors to health workers or members of their families, nor shall these be accepted by the health workers or members of their families, except as otherwise provided in Section 8(e). (d) Samples of infant formula or other products within the scope of this Code, or of equipment or utensils for their preparation or use, shall not be provided to health workers except when necessary for the purpose of professional evaluation or research in accordance with the rules and regulations promulgated by the Ministry of Health. No health workers shall give samples of infant formula to pregnant women and mothers of infants or members of their families. (e) Manufacturers and distributors of products within the scope of this Code may assist in the research, scholarships and continuing education, of health

professionals, in accordance with the rules and regulations promulgated by the Ministry of Health. SECTION 9. Persons employed by Manufacturers and Distributors Personnel employed in marketing products within the scope of this Code shall not, as part of their job responsibilities, perform educational functions in relation to pregnant women or mothers of infants.
55

See p. 20. See p. 21.

56

57

SECTION 16. All health and nutrition claims for products within the scope of the Code are absolutely prohibited. For this purpose, any phrase or words that connotes to increase emotional, intellectual abilities of the infant and young child and other like phrases shall not be allowed.
58

See p. 30. SECTION 10. Containers/Label xxxx (d) The term "humanized", "maternalized" or similar terms shall not be used.

59

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.
60

SECTION 26. Content Each container/label shall contain such message, in both Filipino and English languages, and which message cannot be readily separated therefrom, relative the following points:
61

xxxx (f) The health hazards of unnecessary or improper use of infant formula and other related products including information that powdered infant formula may contain pathogenic microorganisms and must be prepared and used appropriately.
62

TSN of the hearing of June 19, 2007, pp. 114-120. TSN of June 19, 2007 hearing, pp. 193-194, 198, 231, 237-240, 295-300. G.R. No. 152214, September 19, 2006, 502 SCRA 295. Id. at 314. SECTION 7. Health Care System

63

64

65

66

xxxx (b) No facility of the health care system shall be used for the purpose of promoting infant formula or other products within the scope of this Code. This Code does not, however, preclude the dissemination of information to health professionals as provided in Section 8(b).
67

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).

68

SECTION 8. Health Workers xxxx (e) Manufacturers and distributors of products within the scope of this Code may assist in the research, scholarships and continuing education, of health professionals, in accordance with the rules and regulations promulgated by the Ministry of Health.

SECTION 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon:
69

xxxx (i) Milk companies, and their representatives, should not form part of any policymaking body or entity in relation to the advancement of breastfeeding.
70

SECTION 22. No manufacturer, distributor, or representatives of products covered by the Code shall be allowed to conduct or be involved in any activity on breastfeeding promotion, education and production of Information, Education and Communication (IEC) materials on breastfeeding, holding of or participating as speakers in classes or seminars for women and children activities and to avoid the use of these venues to market their brands or company names.
71

SECTION 9. Research, Ethics Committee, Purpose - The DOH shall ensure that research conducted for public policy purposes, relating to infant and young child feeding should, at all times, be free form any commercial influence/bias; accordingly, the health worker or researcher involved in such must disclose any actual or potential conflict of interest with the company/person funding the research. In any event, such research and its findings shall be subjected to independent peer review. x x x. SECTION 10. Public Disclosure For transparency purposes, a disclosure and/or disclaimer of the sponsoring company should be done by the company itself, health worker,
72

researcher involved through verbal declaration during the public presentation of the research and in print upon publication. SECTION 32. Primary Responsibility of Health Workers It is the primary responsibility of the health workers to promote, protect and support breastfeeding and appropriate infant and young child feeding. Part of this responsibility is to continuously update their knowledge and skills on breastfeeding. No assistance, support, logistics or training from milk companies shall be permitted.
73 74

Supra note 68.

75

SECTION 51. Donations Within the Scope of This Code - Donations of products, materials, defined and covered under the Milk Code and these implementing rules and regulations, shall be strictly prohibited.
76

159-A Phil. 142 (1975). G.R. No. 159149, June 26, 2006, 492 SCRA 638.

77

78

Smart Communications, Inc. v. National Telecommunications Commission, 456 Phil. 145, 155-156 (2003).
79

Yazaki Torres Manufacturing, Inc. v. Court of Appeals, G.R. No. 130584, June 27, 2006, 493 SCRA 86, 97.
80

Supra note 78, at 156. Petitioner's Memorandum.

81

SECTION 4. Declaration of Principles The following are the underlying principles from which the revised rules and regulations are premised upon:
82

xxxx (f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other related products are prohibited.
83

SECTION 4. Declaration of Principles x x x

(i) Milk companies, and their representatives, should not form part of any policymaking body or entity in relation to the advancement of breastfeeding.
84

SECTION 5. x 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; x x x. 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
85

exaggerate breastmilk substitutes and/or replacements, as well as related products covered within the scope of this Code.
86

Supra note 70. Supra note 73.

87

SECTION 46. Administrative Sanctions. The following administrative sanctions shall be imposed upon any person, juridical or natural, found to have violated the provisions of the Code and its implementing Rules and Regulations:
88

(a) 1st violation Warning; (b) 2nd violation Administrative fine of a minimum of Ten Thousand (P10,000.00) to Fifty Thousand (P50,000.00) Pesos, depending on the gravity and extent of the violation, including the recall of the offending product; (c) 3rd violation Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and extent of the violation, and in addition thereto, the recall of the offending product, and suspension of the Certificate of Product Registration (CPR); (d) 4th violation Administrative Fine of a minimum of Two Hundred Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the gravity and extent of the violation; and in addition thereto, the recall of the product, revocation of the CPR, suspension of the License to Operate (LTO) for one year; (e) 5th and succeeding repeated violations Administrative Fine of One Million (P1,000,000.00) Pesos, the recall of the offending product, cancellation of the CPR, revocation of the License to Operate (LTO) of the company concerned, including the blacklisting of the company to be furnished the Department of Budget and Management (DBM) and the Department of Trade and Industry (DTI); (f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day shall be made for every day the violation continues after having received the order from the IAC or other such appropriate body, notifying and penalizing the company for the infraction. For purposes of determining whether or not there is "repeated" violation, each product violation belonging or owned by a company, including those of their subsidiaries, are deemed to be violations of the concerned milk company and shall not be based on the specific violating product alone.
89

SECTION 52. Other Donations By Milk Companies Not Covered by this Code - Donations of products, equipments, and the like, not otherwise falling within the scope of this Code or these Rules, given by milk companies and their agents, representatives, whether in kind or in cash, may only be coursed through the Inter Agency Committee (IAC), which shall determine whether such donation be accepted or otherwise.
90

Eastern Assurance & Surety Corporation v. Land Transportation Franchising and Regulatory Board, 459 Phil. 395, 399 (2003).

91

G.R. No. 156041, February 21, 2007.

Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .

SUPREME COURT OF THE UNITED STATES

PLEASANT GROVE CITY, UTAH, et al. v. SUMMUM
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 07665. Argued November 12, 2008Decided February 25, 2009

Pioneer Park (Park), a public park in petitioner Pleasant Grove City (City), has at least 11 permanent, privately donated displays, including a Ten Commandments monument. In rejecting the request of respondent Summum, a religious organization, to erect a monument containing the Seven Aphorisms of Summum, the City explained that it limited Park monuments to those either directly related to the Citys history or donated by groups with longstanding community ties. After the City put that policy and other criteria into writing, respondent renewed its request, but did not describe the monuments historical significance or respondents connection to the community. The City rejected the request, and respondent filed suit, claiming that the City and petitioner officials had violated the First Amendment s Free Speech Clause by accepting the Ten Commandments monument but rejecting respondents proposed monument. The District Court denied respondents preliminary injunction request, but the Tenth Circuit reversed. Noting that it had previously found the Ten Commandments monument to be private rather than government speech and that public parks have traditionally been regarded as public forums, the court held that, because the exclusion of the monument was unlikely to survive strict scrutiny, the City was required to erect it immediately.

Held: The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. Pp. 418. (a) Because that Clause restricts government regulation of private speech but not government speech, whether petitioners were engaging in their own expressive conduct or providing a forum for private speech determines which precedents govern here. Pp. 47. (1) A government entity is entitled to say what it wishes, Rosenbergerv. Rector and Visitors of Univ. of Va., 515 U. S. 819 , and to select the views that it wants to express, see, e.g., Rust v. Sullivan, 500 U. S. 173 . It may exercise this same freedom when it receives private assistance for the purpose of delivering a governmentcontrolled message. See Johanns v. Livestock Marketing Assn., 544 U. S. 550 . This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause. In addition, public officials involvement in advocacy may be limited by law, regulation, or practice; and a government entity is ultimately accountable to the electorate and the political process for its advocacy, Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 . Pp. 46. (2) In contrast, government entities are strictly limited in their ability to regulate private speech in traditional public fora. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 . Reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn. v. Perry Local Educators Assn.,460 U. S. 37 , but content-based restrictions must satisfy strict scrutiny, i.e.,they must be narrowly tailored to serve a compelling government interest, seeCornelius, supra, at 800. Restrictions based on viewpoint are also prohibited.Carey v. Brown, 447 U. S. 455 . Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum. Cornelius, supra, at 800. And where government creates a forum that is limited to use by certain groups or dedicated to the discussion of certain subjects, Perry Ed. Assn., supra, at 46, n. 7, it may impose reasonable and viewpoint-neutral restrictions, see Good News Club v. Milford Central School, 533 U. S. 98 . Pp. 67. (b) Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Thus, a government-commissioned and government-financed

monument placed on public land constitutes government speech. So, too, are privately financed and donated monuments that the government accepts for public display on government land. While government entities regularly accept privately funded or donated monuments, their general practice has been one of selective receptivity. Because city parks play an important role in defining the identity that a city projects to its residents and the outside world, cities take care in accepting donated monuments, selecting those that portray what the government decisionmakers view as appropriate for the place in question, based on esthetics, history, and local culture. The accepted monuments are meant to convey and have the effect of conveying a government message and thus constitute government speech. Pp. 710. (c) Here, the Parks monuments clearly represent government speech. Although many were donated in completed form by private entities, the City has effectively controlled their messages by exercising final approval authority over their selection. Johanns, supra, at 560561. The City has selected monuments that present the image that the City wishes to project to Park visitors; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument; and it has now expressly set out selection criteria. P. 10. (d) Respondents legitimate concern that the government speech doctrine not be used as a subterfuge for favoring certain viewpoints does not mean that a government entity should be required to embrace publicly a privately donated monuments message in order to escape Free Speech Clause restrictions. A city engages in expressive conduct by accepting and displaying a privately donated monument, but it does not necessarily endorse the specific meaning that any particular donor sees in the monument. A governments message may be altered by the subsequent addition of other monuments in the same vicinity. It may also change over time. Pp. 1015. (e) [P]ublic forum principles are out of place in the context of this case.United States v. American Library Assn., Inc., 539 U. S. 194 . The forum doctrine applies where a government property or program is capable of accommodating a large number of public speakers without defeating the essential function of the land or program, but public parks can accommodate only a limited number of permanent monuments. If governments must maintain viewpoint neutrality in selecting donated monuments, they must either prepare for cluttered parks or face pressure to remove longstanding and cherished monuments. Were public parks considered traditional public forums for the purpose of erecting privately donated monuments, most parks

would have little choice but to refuse all such donations. And if forum analysis would lead almost inexorably to closing of the forum, forum analysis is out of place. Capitol Square Review and Advisory Bd. v.Pinette, 515 U. S. 753 , distinguished. Pp. 1518. 483 F. 3d 1044, reversed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., andStevens, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Breyer, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment.

Republic of the Philippines SUPREME COURT Manila EN BANC 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 Malacaang 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 Espaa 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 twentyfour 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;
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(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 Malacaang dated September 21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus: Malacaang 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 Presidents 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 assemblys time, place and manner of conduct. It entails traffic rerouting 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 rallys 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 Osmea 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 nations 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 peoples 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 betweendisorderly 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 wellordered 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 nonpeaceful 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 ones 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 placewhere 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

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

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.

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 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 twentyfour (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.

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 Osmea 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 contentbased 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 petitioners 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. Websters 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 Osmea. 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. 880s 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 laws system of regulation of the peoples 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, law enforcement agencies shall observe the following guidelines:
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(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 toheightened 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 provided under B.P. No. 880. If, after that period, no such parks 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 therein. The only requirement will be written notices to the police and the mayors office to allow proper coordination and orderly activities. WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one 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 in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated 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 toSTRICTLY OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED. No costs. SO ORDERED. ADOLFO S. AZCUNA Associate Justice WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice

(On Leave) REYNATO S. PUNO Associate Justice CONSUELO YNARES-SANTIAGO Associate Justice ANTONIO T. CARPIO

LEONARDO A. QUISUMBING Asscociate Justice ANGELINA SANDOVAL-GUTIERREZ Asscociate Justice MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice RENATO C. CORONA Associate Justice ROMEO J. CALLEJO, SR. Associate Justice MINITA V. CHICO-NAZARIO Associate Justice

Asscociate Justice CONCHITA CARPIO MORALES Asscociate Justice DANTE O. TINGA Asscociate Justice CANCIO C. GARCIA Asscociate 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

Footnotes
1

Petition for Certiorari, Mandamus and Prohibition with Prayer for Temporary Restraining Order filed by Bayan, Karapatan, Kilusang Magbubukid Ng Pilipinas (KMP), COURAGE, GABRIELA, Fr. Jose A. Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar.
2

Petition for Prohibition, Injunction, Restraining Order and other Just and Equitable Reliefs filed by 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.
3

Petition for Certiorari, Prohibition and Mandamus with Prayer for Issuance of Restraining Order filed by 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.

Petitioner Gilda Sumilang. Petition, G.R. No. 169838, p. 29.

Citing Adiong v. Commission on Elections, 207 SCRA 712 (1992); United States v. OBrien, 391 U.S. 367, 20 L. Ed. 2d 672 (1968); see R.D. Rotunda, et al., TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE (1986) citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed. 2d 221 (1984).
6 7

G.R. No. 132231, March 31, 1998, 288 SCRA 447. G.R. No. 103956, March 31, 1992, 207 SCRA 712. G.R. No. 71169, August 25, 1989, 176 SCRA 719.

10

Citing Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996, 259 SCRA 529.
11

G. R. No. L-65366, November 9, 1983, 125 SCRA 553. 80 Phil. 71 (1948). G.R. No. 124540, November 14, 1997. Resolution dated March 28, 2006. 346 Phil. 665-666 (1997). 7 Phil. 422 (1907). 80 Phil. 71 (1948). Ibid at 75-76 (Emphasis supplied). G.R. No. L-65366, November 9, 1983, 125 SCRA 553. G.R. No. 132231, March 31, 1998, 288 SCRA 447. Ibid, p. 478.

12

13

14

15

16

17

18

19

20

21

22

Except picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute, which are governed by the Labor Code and other labor laws; political meeting or rallies held during any election campaign period, which are governed by the Election Code and other election related laws; and public assemblies in the campus of a government-owned and operated educational institution, which shall be subject to the rules and regulations of said educational institution. (Sec. 3[a] and Sec. 4 of B.P. No. 880). WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (1993 Ed)., p. 1836.
23

24

The Local Government Code. Specifically, Section 16 stating the general welfare clause, thus: Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
25

Respondents Consolidated Memorandum, pp. 30-31 (Emphasis supplied by respondents). Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.

26

EN BANC
PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners, - versus G.R. No. 171396 Present:
*

GLORIA MACAPAGALARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents. x-------------------------------------------------x NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

PANGANIBAN, C.J., PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, JJ. Promulgated: May 3, 2006

G.R. No. 171409

- versus HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents. x-------------------------------------------------x FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINOCUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROSBARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners, - versus EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG,

G.R. No. 171485

GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents. x-------------------------------------------------x KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFLUKMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners, - versus -

G.R. No. 171483

HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents. x-------------------------------------------------x ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, - versus -

G.R. No. 171400

EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents. x-------------------------------------------------x JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners, - versus -

G.R. No. 171489

HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents. x-------------------------------------------------x LOREN B. LEGARDA, Petitioner,

G.R. No. 171424

- versus -

GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO

LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents. x---------------------------------------------------------------------------------------------x

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary.[1] Superior strength the use of force cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty. Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: In cases involving liberty, the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their constitutional validity.[2] These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually

trampling upon the very freedom guaranteed and protected Constitution. Hence, such issuances are void for being unconstitutional.

by

the

Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?[3] On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . ., and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists the historical enemies of the democratic Philippine State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down the President; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including hindering the growth of the economy and sabotaging the peoples confidence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left, represented by the NDFCPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the democratic Philippine State and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down our republican government; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the economy and sabotaging the peoples confidence in the government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country; I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary; WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion; NOW, THEREFORE, I, GLORIA MACAPAGALARROYO, President of the Republic of the Philippines, by virtue of the powers

vested in me by law, hereby declare that the state of national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New Peoples Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo.[4] They considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present danger. During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners counsels. The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While he explained that it is not respondents task to state the facts behind the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues. On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left arms. [5] On February 17, 2006, the authorities got hold of a document entitled Oplan Hackle I which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet members and President Arroyo herself.[6] Upon the advice of her security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents.[7] Prior to his arrest, Lt. San Juan announced through DZRH that the Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I. On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to disavow any defection. The latter promptly obeyed and issued a public statement: All SAF units are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty. On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his groups plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said it was all systems go for the planned movement against Arroyo.[8] B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal declared: The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to end it.[9] On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly announced: Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field. He claimed that with the forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the Presidents ouster is nearing its concluding stage in the first half of 2006. Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.[10] By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain of command remains solid and undivided. To protect the young students from any possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National Capital Region. For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary celebration ofEdsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that warrantless arrests and take-over of facilities, including media, can already be implemented.[11] Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.[12] According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies. During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan. At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed

inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed outside the building.[13] A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. The raid, according to Presidential Chief of Staff Michael Defensor, is meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. The PNP warned that it would take over any media organization that would not follow standards set by the government during the state of national emergency. Director General Lomibao stated that if they do not follow the standards and the standards are - if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks to cooperate with the government for the duration of the state of national emergency. He asked for balanced reporting from broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened.[14] Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions. When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody. Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite. Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the Batasan 5 decided to stay indefinitely. Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions. On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist. In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent. In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly. In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding the Daily Tribuneoffices as a clear case of censorship or prior restraint. They also

claimed that the term emergency refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is absolutely no emergency that warrants the issuance of PP 1017. In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute usurpation of legislative powers; violation of freedom of expression and a declaration of martial law. They alleged that President Arroyo gravely abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so. In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional because (1)they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances. In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section 17[20]of Article XII of the Constitution. In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an arbitrary and unlawful exercise by the President of her Martial Law powers. And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that it amounts to an exercise by the President of emergency powers without congressional approval. In addition, petitioners asserted that PP 1017 goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code. And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5 are unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of the press and the right

to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution. In this regard, she stated that these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal. In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being moot;second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to free expression and redress of grievances. On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be summarized as follows: A. PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and academic. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and171424 (Legarda) have legal standing. B. SUBSTANTIVE: 1) Whether the Supreme Court can review the factual bases of PP 1017. 2) Whether PP 1017 and G.O. No. 5 are unconstitutional. a. Facial Challenge b. Constitutional Basis c. As Applied Challenge A. PROCEDURAL First, we must resolve the procedural roadblocks. I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It confers limited powers on the national government. x x x If the government consciously or unconsciously oversteps these limitations there must be some authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the theory of judicial review.[22]

But the power of judicial review does not repose upon the courts a self starting capacity.[23] Courts may exercise such power only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of constitutionality;third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself.[24] Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon. An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a real and substantial controversy admitting of specific relief.[25] The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions were rendered moot and academic by President Arroyos issuance of PP 1021. Such contention lacks merit. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,[26] so that a declaration thereon would be of no practical use or value.[27] Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of mootness.[29]

The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative.[30] The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;[31] second, the exceptional character of the situation and the paramount public interest is involved;[32] third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;[33] and fourth, the case is capable of repetition yet evading review.[34] All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the publics interest, involving as they do the peoples basic rights to freedom of expression, of assembly and of the press. Moreover, 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 petitions, the military and the police, on the extent of the protection given by constitutional guarantees.[35] And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganibans Separate Opinion inSanlakas v. Executive Secretary.[36] However, they failed to take into account the Chief Justices very statement that an otherwise moot case may still be decided provided the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct result of its issuance. The present case falls right within this exception to the mootness rule pointed out by the Chief Justice.

II- Legal Standing In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing discussion on legal standing or locus standi. Locus standi is defined as a right of appearance in a court of justice on a given question.[37] In private suits, standing is governed by the real -parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that every action must be prosecuted or defended in the name of the real party in interest. Accordingly, the realparty-in interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.[38] Succinctly put, the plaintiffs standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or taxpayer. Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction was first laid down inBeauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[40] In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied. With respect to taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and

a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied. However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent direct injurytest in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. The Veradoctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,[45] Manila Race Horse Trainers Association v. De la Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]
[44]

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49] where the transcendental importance of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the issues raised due to the farreaching implications of the petition notwithstanding its categorical stateme nt that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.[51] Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue under the principle of transcendental importance. Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi; (2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held that given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review of the Visiting Forces Agreement; (3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that Balikatan 02-01 involves the exercise of Congress taxing or spending powers, it reiterated its ruling in Bagong [55] Alyansang Makabayan v. Zamora, that in cases of transcendental importance, the cases must be settled promptly and definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) (2) (3) (4) (5) the cases involve constitutional issues; for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; for voters, there must be a showing of obvious interest in the validity of the election law in question; for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing. In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a peoples organization does not give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the Court reiterated the direct injury test with respect to concerned citizens cases involving constitutional issues. It held that there must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act. In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters. In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the Presidents declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative powers . As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson. Now, the application of the above principles to the present petitions. The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with petitioners inG.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged direct injury resulting from illegal arrest and unlawful search committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court the alleged violations of their basic rights. In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v. Philippine Amusement and Gaming Corporation,[63] and Taada v. Tuvera,[64] that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their members.[65] We take judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5. In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. However, in view of the transcendental importance of the issue, this Court declares that petitioner have locus standi. In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no

longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her from pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more the transcendental importance of the issue involved, this Court may relax the standing rules. It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the liberality doctrine on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the transcendental importance doctrine, a relaxation of the standing requirements for the petitioners in the PP 1017 cases. This Court holds that all the petitioners herein have locus standi. Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency,[67] may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people[68] but he may be removed from office only in the mode provided by law and that is by impeachment.[69]

B. SUBSTANTIVE I. Review of Factual Bases Petitioners maintain that PP 1017 has no factual basis. Hence, it was not necessary for President Arroyo to issue such Proclamation. The issue of whether the Court may review the factual bases of the Presidents exercise of his Commander-in-Chief power has reached its distilled point from the indulgent days of Barcelon v. [70] [71] Baker and Montenegro v. Castaneda to the volatile era of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The tug-of-war always cuts across the line defining political questions, particularly those questions in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.[75] Barcelon and Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and balances, under which the President is supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in turn, [76] constitutionally supreme. In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court was almost evenly divided on the issue of whether the validity of the imposition of [78] Martial Law is a political or justiciable question. Then came Garcia-Padilla v. Enrilewhich greatly diluted Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that in times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God.[79]

The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these cases at bar -- echoed a principle similar toLansang. While the Court considered the Presidents calling-out power as a discretionary power solely vested in his wisdom, it stressed that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. This ruling is mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only to settle actual controversies involving rights which are legally demandable and enforceable, but also 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. The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government.[81] It speaks of judicial prerogative not only in terms of power but also of duty.[82] As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test that judicial inquiry can go no further than to satisfy the Court not that the Presidents decision is correct, but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court further ruled that it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis and that if he fails, by way of proof, to support his assertion, then this Court cannot undertake an independent investigation beyond the pleadings. Petitioners failed to show that President Arroyos exercise of the calling -out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their

audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty. II. Constitutionality of PP 1017 and G.O. No. 5 Doctrines of Several Political Theorists on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the various political theories relating to this subject provides an adequate backdrop for our ensuing discussion. John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative power to act according to discretion for the public good, without the proscription of the law and sometimes even against it.[84] But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that the people have

no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven.[85] Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation. Even Sparta allowed its law to lapse... If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear that the peoples first intention is that the State shall not perish.[86]

Rosseau did not fear the abuse of the emergency dictatorship or supreme magistracy as he termed it. For him, it would more likely be cheapened by indiscreet use. He was unwilling to rely upon an appeal to heaven. Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship.[87]

John Stuart Mill concluded his ardent defense of representative government: I am far from condemning, in cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra constitutional measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules for applying it.[89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a regularized system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have employed the doctrine of constitutional dictatorship.[91] Frederick M. Watkins saw no reason why absolutism should not be used as a means for the defense of liberal institutions, provided it serves to protect established institutions from the danger of permanent injury in a period of temporary emergency and is followed by a prompt return to the previous forms of political life.[92] He recognized the two (2) key elements of the problem of emergency governance, as well as all constitutional governance: increasing administrative powers of the executive, while at the same time imposing limitation upon that power.[93] Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of such a dictatorship: The period of dictatorship must be relatively shortDictatorship should always be strictly legitimate in characterFinal authority to determine the need for dictatorship in any given case must never rest with the dictator himself[94] and the objective of such an emergency dictatorship should be strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] It is a problem of concentrating power in a government where

power has consciously been divided to cope with situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what end.[96] Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: The emergency executive must be appointed by constitutional means i.e., he must be legitimate; he should not enjoy power to determine the existence of an emergency; emergency powers should be exercised under a strict time limitation; and last, the objective of emergency action must be the defense of the constitutional order.[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of constitutional dictatorship as solution to the vexing problems presented by emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions of success of the constitutional dictatorship, thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even indispensable to the preservation of the State and its constitutional order 2) the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute the dictator 3) No government should initiate a constitutional dictatorship without making specific provisions for its termination 4) all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit of constitutional or legal requirements 5) no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is absolutely necessary for the conquest of the particular crisis . . . 6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in character or effect 7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . . 9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in the hands of the man or men who constitute the dictator. . . 10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted 11) the termination of the crisis must be followed by a complete return as possible to the political and governmental conditions existing prior to the initiation of the constitutional dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of congressional investigating committees.[100] Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, the suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory. To appraise emergency power in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not whether the term dictator is used in its normal sense (as applied to authorita rian rulers) or is employed to embrace all chief executives administering emergency powers. However used, constitutional dictatorship cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored instead the concept of constitutionalism articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon the substantive powers of government, full emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in discussing the meaning of

constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of adequate processes for keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that the really effective checks on despotism have consisted not in the weakening of government but, but rather in the limiting of it; between which there is a great and very significant difference. In associating constitutionalism with limited as distinguished from weak government, McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.[101]

In the final analysis, the various approaches to emergency of the above political theorists - from Locks theory of prerogative, to Watkins doctrine of constitutional dictatorship and, eventually, to McIlwains principle of constitutionalism --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and checks. Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jacksons balanced power structure.[102] Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or check upon the other. This system does not weaken the President, it just limits his power, using the language of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed procedural limitations. a. Facial Challenge

Petitioners contend that PP 1017 is void on its face because of its overbreadth. They claim that its enforcement encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a chilling effect to the citizens. A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing on their faces statutes in free speech cases, also known under the American Law as First Amendment cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,[104] the US Supreme Court held that we have not recognized an overbreadth doctrine outside the limited context of the First Amendment (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct. Undoubtedly, lawless violence, insurrection and rebellion are considered harmful and constitutionally unprotected conduct. In Broadrick v. Oklahoma,[105] it was held:
It remains a matter of no little difficulty to determine when a law may properly be held void on its face and when such summary action is inappropriate.But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct even if expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only spoken words and again, that overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.[106] Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as manifestly strong medicine, to be used sparingly and only as a last resort, and is generally disfavored;[107] The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute on its face, not merely as applied for so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the chilling; deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws very existence may cause others not before the court to refrain from constitutionally protected speech or expression. An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from

constitutionally protected speech or expression. In Younger v. Harris,[109] it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists. Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted. Related to the overbreadth doctrine is the void for vagueness doctrine which holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application.[110] It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing on their faces statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017 Now on the constitutional foundation of PP 1017. The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision: by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion Second provision: and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction;

Third provision:

as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency. First Provision: Calling-out Power The first provision pertains to the Presidents calling -out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a sequence of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to

declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-out power is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best position to determine the actual condition of the country. Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations. It is pertinent to state, however, that there is a distinction between the Presidents authority to declare a state of rebellion (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyos authority to declare a state of rebellion emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order.

President Arroyos declaration of a state of rebellion was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or

rebellion. She also relied on Section 17, Article XII, a provision on the States extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas. Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power. The declaration of Martial Law is a warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.[113] In his Statement before the Senate Committee on Justice on March 13, 2006, Mr. Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other

purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires. Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-inChief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus. Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyos calling -out power for the armed forces to assist her in preventing or suppressing lawless violence. Second Provision: Take Care Power The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested,[115] the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, execute its laws.[116] In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country,[117] including the Philippine National Police[118] under the Department of Interior and Local Government.[119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.
\

Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was lifted[120] from Former President Marcos Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction. Is it within the domain of President Arroyo to promulgate decrees? PP 1017 states in part: to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction.

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders. Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders. Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars. Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.

President Arroyos ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution.[121] This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate decrees. Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI

categorically states that [t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives. To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees. Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to laws, she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its dutyto suppress lawless violence.

Third Provision: Power to Take Over The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience to all the laws and to all decrees x x x but also to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privatelyowned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017? The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority or delegation from Congress, to take over or direct the operation of any privatelyowned public utility or business affected with public interest. This provision was first introduced in the 1973 Constitution, as a product of the martial law thinking of the 1971 Constitutional Convention.[122] In effect at the time of its approval was President Marcos Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency. Petitioners, particularly the members of the House of Representatives, claim that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency powers. This is an area that needs delineation. A distinction must be drawn between the Presidents authority to declare a state of national emergency and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to other national emergency. If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a state of national emergency pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare a state of national emergency. The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a

different matter. This requires a delegation from Congress. Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other.[123] Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers. Generally, Congress is the repository of emergency powers . This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency. (2) The delegation must be for a limited period only. (3) The delegation must be subject to such restrictions as the Congress may prescribe. (4) The emergency powers must be exercised to carry out a national policy declared by Congress.[124]

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest, it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:

It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that The executive Power shall be vested in a President . . . .; that he shall take Care that the Laws be faithfully executed; and that he shall be Commander-in-Chief of the Army and Navy of the United States. The order cannot properly be sustained as an exercise of the Presidents military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though theater of war be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nations lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the Presidents power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that All legislative Powers herein granted shall be vested in a Congress of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency under Section 17, Article XII refers to tsunami, typhoon, hurricane and similar occurrences. This is a limited view of emergency.

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity,

variety, and perception.[127] Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic,[128] b) natural disaster,[129] and c) national security.[130] Emergency, as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.[131] This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of national emergency which appears in Section 13, page 5? It reads: When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters. MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots? MR. VILLEGAS. Strikes, no; those would not be covered by the term national emergency. MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.[132] x x x x x x

MR. TINGSON. May I ask the committee if national emergency refers to military national emergency or could this be economic emergency? MR. VILLEGAS. Yes, it could refer to both military or economic dislocations. MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to the President the power to take over privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which extraordinary measures are exercised, remains in Congress even in times of crisis. x x x
After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact remains that the Constitution has set up this form of government, with all its defects and shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino people by adopting parliamentary government have given notice that they share the faith of other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this framework of government, legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the United States, the basic features of whose Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws been surrendered to another department unless we regard as legislating the carrying out of a legislative policy according to prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances the various branches, executive, legislative, and judicial, given the ability to act, are called upon to perform the duties and discharge the responsibilities committed to them respectively.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have

ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.

c. AS APPLIED CHALLENGE One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the right against warrantless arrest; and the freedom of speech, of expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow. Of the seven (7) petitions, three (3) indicate direct injury. In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest. In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG operatives raided and ransacked without warrant their office. Three policemen were assigned to guard their office as a possible source of destabilization. Again, the basis was PP 1017. And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were turned away and dispersed when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I. A perusal of the direct injuries allegedly suffered by the said petitioners shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the illegal implementation of a law render it unconstitutional? Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused[135] and may afford an opportunity for abuse in the manner of application.[136] The validity of a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.[137] PP 1017 is merely an invocation of the Presidents calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the exercise of power, and not a mere incidental result arising from its exertion.[138] This is logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long time ago. President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines. They are internal rules issued by the executive officer to his subordinates precisely for the proper and efficient administration of law. Such rules and regulations create no relation except between the official who issues them and the official who

receives them.[139] They are based on and are the product of, a relationship in which power is their source, and obedience, their object.[140] For these reasons, one requirement for these rules to be valid is that they must be reasonable, not arbitrary or capricious. G.O. No. 5 mandates the AFP and the PNP to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. Unlike the term lawless violence which is unarguably extant in our statutes and the Constitution, and which is invariably associated with invasion, insurrection or rebellion, the phrase acts of terrorism is still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this definitional predicament or the absenc e of an agreed definition of terrorism confronts not only our country, but the international

community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the fight against terrorism has become one of the basic slogans when it comes to the justification of the use of force against certain states and against groups operating internationally. Lists of states sponsoring terrorism and of terrorist organizations are set up and constantly being updated according to criteria that are not always known to the public, but are clearly determined by strategic interests. The basic problem underlying all these military actions or threats of the use of force as the most recent by the United States against Iraq consists in the absence of an agreed definition of terrorism. Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as liberation movements, or by individuals. The dilemma can by summarized in the saying One countrys terrorist is another countrys freedom fighter. The apparent contradiction or lack of consistency in the use of the term terrorism may further be demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later became internationally respected statesmen. What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those acts from eventually legitimate acts of national resistance or self-defense? Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who associate terrorism with any violent act by non-state groups against civilians, state functionaries or infrastructure or military installations, and those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is concerned. The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of organizations and movements such as Palestine Liberation Organization (PLO) which is a terrorist group for Israel and a liberation movement for Arabs and Muslims the Kashmiri resistance groups who are terrorists in the perception of India, liberation fighters in that of Pakistan the earlier Contras in Nicaragua freedom fighters for the United States, terrorists for the Socialist camp or, most drastically, the Afghani

Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way because of opposing political interests that are at the roots of those perceptions. How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the definition of terrorism will fluctuate accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a liberation struggle, not of terrorism when acts of violence by this group are concerned, and vice-versa. The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these conflicting interests of sovereign states that determine in each and every instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A policy of double standards on this vital issue of international affairs has been the unavoidable consequence. This definitional predicament of an organization consisting of sovereign states and not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! has become even more serious in the present global power constellation: one superpower exercises the decisive role in the Security Council, former great powers of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has become even more acute [141] since the terrorist attacks of 11 September 2001 I the United States.

The absence of a law defining acts of terrorism may result in abuse and oppression on the part of the police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the corresponding penalty thereon.

So far, the word terrorism appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled Codifying The Various Laws on

Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations. The word terrorism is mentioned in the following provision: That one who conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define acts of terrorism. Since there is no law defining acts of terrorism, it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the acts of terrorism portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that the right of the people to be secured in their persons, houses, papers and effects against unreasonable search and seizure of

whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[142] The plain import of the language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest.[143]

In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated brusquely by policemen who held his head and tried to push him inside an unmarked car;fifth, he was charged with Violation of Batas Pambansa Bilang No. 880[145] and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was eventually released for insufficiency of evidence. Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest. During the inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective Oust Gloria Now and their erroneous assumption that petitioner David was the leader of the rally.[146] Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with i nciting to sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner David was the leader of the rally.[147]

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

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.

Assembly means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of

expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting was 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. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs directive canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the

State has a right to prevent.[149] Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens right to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their permits.[150] The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a persons right is restricted by government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press. Petitioners narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily Tribunes offices were searched without warrant; second,the police operatives seized several materials for publication; third, the search was conducted at about 1:00 o clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily Tribune except the security guard of the building; and fifth,policemen stationed themselves at the vicinity of the Daily Tribune offices. Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government. Director General Lomibao further stated that if they do not follow the standards and the standards are if they would contribute to instability in the government, or

if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend atakeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks to cooperate with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened.[151] The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. All these rules were violated by the CIDG operatives. Not only that, the search violated petitioners freedom of the press. The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff[152] this Court held that -As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the Metropolitan Mail and We Forum newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always be obsta principiis.[154]

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribunes offices and the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible for any purpose, thus:
JUSTICE CALLEJO: You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in admission of the admissibility of these clippings that were taken from the Tribune? SOLICITOR GENERAL BENIPAYO: Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are inadmissible for any purpose.[155] xxx xxx xxx

SR. ASSO. JUSTICE PUNO: These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So why do you have to go there at 1 oclock in the morning and without any search warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what? SOLGEN BENIPAYO: Well, it was the police that did that, Your Honor. Not upon my instructions. SR. ASSO. JUSTICE PUNO: Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation 1017. SOLGEN BENIPAYO: It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could go and inspect and gather clippings from Daily Tribune or any other newspaper. SR. ASSO. JUSTICE PUNO: Is it based on any law? SOLGEN BENIPAYO: As far as I know, no, Your Honor, from the facts, no. SR. ASSO. JUSTICE PUNO: So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO: Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say this, we do not

condone this. If the people who have been injured by this would want to sue them, they can sue and there are [156] remedies for this.

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN: There seems to be some confusions if not contradiction in your theory. SOLICITOR GENERAL BENIPAYO: I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the law. These are acts of the police officers, that is their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and should result in no constitutional or statutory breaches if applied according to their letter. The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens rights under the Constitution, this Court has to declare such acts unconstitutional and illegal. In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed if the May 1 rallies become unruly and violent. Consequently, the transcendental issues raised by the parties should not be evaded; they must now be resolved to prevent future constitutional aberration. The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard that the military and the police should take only the necessary and appropriate actions and measures to suppress and prevent acts of lawless violence. But the words acts of terrorism found in G.O. No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While terrorism has been denounced generally in media, no law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFPs authority in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual police officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes of action and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this Court from making any specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state. During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our peoples liberty. Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.[158]

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is necessary and appropriate actions and measures to suppress and prevent acts of lawless violence. Considering that acts of terrorism have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL. The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL. No costs.

SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief Justice

(On leave) REYNATO S. PUNO Associate Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

CANCIO C. GARCIA 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 case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice

* [1]

[2] [3]

On leave. Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark Lecturer, Volume XIX, 1971, p. 29. Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006. Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who propounded universal impermanence and that all things, notably opposites are interrelated. Respondents Comment dated March 6, 2006. Ibid. Ibid. Minutes of the Intelligence Report and Security Group, Philippine Army, Annex I of Respondents Consolidated Comment. Respondents Consolidated Comment. Ibid. Ibid. Petition in G.R. No. 171396, p. 5. Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed were broadcast as breaking news by the major television stations of this country. Petition in G.R. No. 171400, p. 11. Ibid.

[4] [5] [6] [7]

[8] [9] [10] [11] [12]

[13] [14]

[15]

The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 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. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

[16]

[17]

[18]

[19]

[20]

In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. 1 Cranch 137 [1803]. Howard L. MacBain, Some Aspects of Judicial Review, Bacon Lectures on the Constitution of the United States (Boston: Boston University Heffernan Press, 1939), pp. 376-77. The Court has no self-starting capacity and must await the action of some litigant so aggrieved as to have a justiciable case. (Shapiro and Tresolini, American Constitutional Law, Sixth Edition, 1983, p. 79). Cruz, Philippine Political Law, 2002 Ed., p. 259. Ibid. Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736. Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590. Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra. Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756. Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425. Province of Batangas v. Romulo, supra. Lacson v. Perez, supra. Province of Batangas v. Romulo, supra.

[21] [22]

[23]

[24] [25] [26] [27]

[28]

[29] [30] [31] [32] [33]

[34]

Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656. Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438. G.R. No. 159085, February 3, 2004, 421 SCRA 656. Blacks Law Dictionary, 6th Ed. 1991, p. 941. Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951). 275 Ky 91, 120 SW2d 765 (1938). 19 Wend. 56 (1837). 232 NC 48, 59 SE2d 359 (1950). 302 U.S. 633. 318 U.S. 446. 65 Phil. 56 (1937). G.R. No. 117, November 7, 1945 (Unreported). G.R. No. 2947, January 11, 1959 (Unreported). 110 Phil. 331 (1960). 77 Phil. 1012 (1947). 84 Phil. 368 (1949) The Court held: Above all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. L-No. 40004, January 31, 1975, 62 SCRA 275. Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the question is one of public duty and the enforcement of a public right, the people are the real party in interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law; Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held that in cases involving an assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses the right. Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan , L. No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that objections to taxpayers lack of personality to sue may be disregarded in determining the validity of the VAT law; Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no expenditure of public funds was involved under the questioned contract, nonetheless considering its important role in the economic development of the country and the magnitude of the financial consideration involved, public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure provision of the Constitution to question it. Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not covered by the definition of a proper party, nonetheless, it has the discretion to waive the requirement, in determining the validity of the implementation of the CARP. Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that it enjoys the open discretion to entertain taxpayers suit or not and that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised.

[35] [36] [37] [38] [39] [40] [41] [42] [43] [44] [45] [46] [47] [48] [49]

[50] [51]

Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to illegal expenditure of public money; Osmea v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the Court held that where serious constitutional questions are involved, the transcendental importance to the public of the cases involved demands that they be settled promptly and definitely, brushing aside technicalities of procedures; De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the importance of the issues involved concerning as it does the political exercise of qualified voters affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi.
[52] [53] [54] [55] [56] [57] [58] [59] [60] [61] [62] [63] [64] [65] [66] [67]

G.R. No. 133250, July 9, 2002, 384 SCRA 152. G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449. G.R. No. 151445, April 11, 2002, 380 SCRA 739. Supra. G.R. No. 118910, November 16, 1995, 250 SCRA 130. G.R. No. 132922, April 21, 1998, 289 SCRA 337. G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756. G.R. No. 159085, February 3, 2004, 421 SCRA 656. 235 SCRA 506 (1994). Supra. Supra. 197 SCRA 52, 60 (1991). Supra. See NAACP v. Alabama, 357 U.S. 449 (1958). G.R. No. 141284, August 15, 2000, 338 SCRA 81 . From the deliberations of the Constitutional Commission, the intent of the framers is clear that the immunity of the President from suit is concurrent only with his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302). Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. Ibid., Sec. 2. No. 2908, September 30, 2005, 471 SCRA 87. 91 Phil. 882 (1952). No. L-33964, December 11, 1971, 42 SCRA 448. No. L-35546, September 17, 1974, 59 SCRA 183. No. L-61388, April 20, 1983, 121 SCRA 472.

[68]

[69] [70] [71] [72] [73] [74]

[75] [76] [77] [78]

Taada v. Cuenco, 103 Phil. 1051 (1957). Lansang v. Garcia, supra, pp. 473 and 481. Supra.
Five Justices Antonio, Makasiar, Esguerra, Fernandez, and Aquino took the position that the proclamation of martial law and the arrest and detention orders accompanying the proclamation posed a political question beyond the jurisdiction of the Court. Justice Antonio, in a separate opinion concurred in by Makasiar, Fernandez, and Aquino, argued that the Constitution had deliberately set up a strong presidency and had concentrated powers in times of emergency in the hands of the President and had given him broad authority and discretion which the Court was bound to respect. He made reference to the decision in Lansang v. Garciabut read it as in effect upholding the political question position. Fernandez, in a separate opinion, also argued Lansang, even understood as giving a narrow scope of review authority to the Court, affirmed the impossible task of checking the action taken by the President. Hence, he advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonment of Lansang and a return to Barcelon. And, although Justices Castro, Fernando, Muoz- Palma, and, implicitly, Teehankee, lined up on the side of justiciability as enunciated in Lansang, x x x Barredo, however, wanted to have the best of both worlds and opted for the view that political questions are not per se beyond the Courts jurisdiction ... but that as a matter of policy implicit in the Constitution itself the Court should abstain from interfering with the Executives Proclamation. (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary , 1996 Edition, p. 794.)

[79] [80] [81] [82] [83] [84] [85] [86] [87] [88] [89] [90] [91] [92] [93] [94] [95] [96] [97] [98] [99]

See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra. Supra. Cruz, Philippine Political Law, 2002 Ed., p. 247. Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756. Supra, 481-482. Smith and Cotter, Powers of the President during Crises, 1972, p. 6. Ibid. The Social Contract (New York: Dutton, 1950), pp. 123-124. Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7. Representative Government, New York, Dutton, 1950, pp. 274, 277-78. The Discourses, Bk. 1, Ch. XXXIV. Smith and Cotter, Powers of the President During Crises, 1972. p. 8. Ibid. See The Problem of Constitutional Dictatorship, p. 328. Ibid., p. 353. Ibid., pp. 338-341. Smith and Cotter, Powers of the President During Crises, 1972, p. 9. Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949, p. 580. Ibid, pp. 574-584. Smith and Cotter, Powers of the President During Crises, 1972, p. 10. Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp. 298-306.

[100] [101] [102]

Smith and Cotter, Powers of the President During Crises, 1972, p. 11. Smith and Cotter, Powers of the President During Crises, 1972, p. 12. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See Concurring Opinion J. Jackson. See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA 393. 481 U.S. 739, 95 L. Ed. 2d 697 (1987). Supra. See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra. Broadrick v. Oklahoma, 413 U.S. 601 (1973). Ibid. 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989). Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967, 20 SCRA 849 (1967). G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained President Arroyos declaration of a state of rebellion pursuant to her calling -out power.

[103]

[104] [105] [106] [107] [108] [109]

[110]

[111]

[112]

Supra. Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in Aquino v. Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)]. Retired Associate Justice of the Supreme Court. Section 1, Article VII of the Constitution. Section 5, Article VII of the Constitution. Section 18, Article VII of the Constitution. Section 6, Article XVI of the Constitution. See Republic Act No. 6975. Ironically, even the 7 th Whereas Clause of PP 1017 which states that Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government replicates more closely Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2 of the 1987 Constitution which provides that, [t[he prime duty of the Government is to serve and protect the people. Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra. Section 17, Article XIV of the 1973 Constitution reads: In times of national emergency when the public interest so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. Antieau, Constitutional Construction, 1982, p.21.

[113]

[114] [115] [116] [117] [118] [119]

[120]

[121]

[122]

[123]

[124] [125] [126]

[127] [128]

Cruz, Philippine Political Law, 1998, p. 94. 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257. Smith and Cotter, Powers of the President During Crises, 1972, p. 14 The Federal Emergency Relief Act of 1933 opened with a declaration that the economic depression created a serious emergency, due to wide-spread unemployment and the inadequacy of State and local relief funds, . . . making it imperative that the Federal Government cooperate more effectively with the several States and Territories and the District of Columbia in furnishing relief to their needy and distressed people. President Roosevelt in declaring a bank holiday a few days after taking office in 1933 proclaimed that heavy and unwarranted withdrawals of gold and currency from banking institutions for the purpose of hoarding; ... resulting in sever drains on the Nations stocks of gold have created a national emergency, requiring his action. Enacted within months after Japans attack on Pearl Harbor, the Emergency Price Control Act of 1942 was designed to prevent economic dislocations from endangering the national defense and security and the effective prosecution of the war. (Smith and Cotter, Powers of the President During Crises, 1972, p.18) The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and necessity for relief in stricken agricultural areas and in another section referred to the present drought emergency.[129] The India Emergency Food Aid Act of 1951 provided for emergency shipments of food to India to meet famine conditions then ravaging the great Asian sub-continent. The Communication Act of 1934 and its 1951 amendment grant the President certain powers in time of public peril or disaster. The other statutes provide for existing or anticipated emergencies attributable to earthquake, flood, tornado, cyclone, hurricane, conflagration an landslides. [129]There is also a Joint Resolution of April 1937. It made funds available for the control of incipient or emergency outbreaks of insect pests or plant diseases, including grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra. National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense, and (4) Hostilities or War. (p. 22) The Federal Civil Defense Act of 1950 contemplated an attack or series of attacks by an enemy of the United States which conceivably would cause substantial damage or injury to civilian property or persons in the United States by any one of several means; sabotage, the use of bombs, shellfire, or atomic, radiological, chemical, bacteriological means or other weapons or processes. Such an occurrence would cause a National Emergency for Civil Defense Purposes, or a state of civil defense emergency, during the term which the Civil Defense Administrator would have recourse to extraordinary powers outlined in the Act. The New York-New Jersey Civil Defense Compact supplies an illustration in this context for emergency cooperation. Emergency as used in this compact sh all mean and include invasion, or other hostile action, disaster, insurrection or imminent danger thereof. ( Id., p.15-16)

[129]

[130]

[131] [132] [133] [134] [135] [136]

Cruz, Philippine Political Law, 1998, p. 95. Record of the Constitutional Commission, Vol. III, pp. 266-267. Record of the Constitutional Convention, pp. 648-649. 84 Phil. 368 (1949). Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173. Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280 US 610, 74 L ed 653, 50 S Ct 158. Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548. Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370. De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115. Ibid. In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the International Progress Organization, speaking on The United Nations, The International Rule of Law and Terrorism cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739. Section 2, Article III of the 1987 Constitution.

[137] [138] [139] [140] [141]

[142]

[143] [144] [145]

Bernas, The 1987 Constitution of the Republic of the Philippines , A Reviewer-Primer, p. 51. Annex A of the Memorandum in G.R. No. 171396, pp. 271 -273. An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition the Government for Other Purposes. Annex A of the Memorandum in G.R. No. 171396, pp. 271 -273. Ibid. 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278. Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553. Section 5. Application requirements - All applications for a permit shall comply with the following guidelines: x x x x x x

[146] [147] [148] [149] [150]

(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.
[151] [152] [153]

Petition in G.R. No. 171400, p. 11. No. L-64161, December 26, 1984, 133 SCRA 816. Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653, 102925 & 102983, March 5, 1992, 207 SCRA 1. Boyd v. United States, 116 U.S. 616 (1886). Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470. Ibid., pp. 432-433. Ibid, pp. 507-508. Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.

[154] [155] [156] [157] [158]

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION 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 courts 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 IBPs 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 Mirandas 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.
1avv phi1

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 areREVERSED. 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-DE CASTRO Associate Justice LUCAS P. BERSAMIN 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 Courts Division. REYNATO S. PUNO Chief Justice

Footnotes
1

Represented by its National President Jose Anselmo Cadiz.

Penned by Justice Myrna Dimaranan Vidal with Justice Eliezer R. De Los Santos and Justice Fernanda Lampas Peralta concurring; rollo, pp. 50-54.
3

Penned by Justice Myrna Dimaranan Vidal with Justice Amelita G. Tolentino and Justice Fernanda Lampas Peralta concurring; id. at 56.
4

Id. at 62-63.

Id. at 64. It was signed by Business Promotion and Development Office Director Gerino Tolentino, Jr. by authority of the Mayor.
6

Id. at 65-74. Batas Pambansa Blg. 880 (October 22, 1985), Sec. 6(g).

Rollo, pp. 81-82. The Complaint-Affidavit filed with the Manila City Prosecutors Office was signed by Police Superintendents Teodorico Perez, Danilo Estapon and Jose Asayo.
8 9

Funa v. Ermita, G.R. No. 184740, February 11, 2010. Rules of Court, Rule 111, Secs. 6-7.

10

11

Philippine Agila Satellite, Inc. v. Lichauco, G.R. 134887, July 27, 2006, 496 SCRA 588, 598; Yap v. Paras, G.R. No. 101236, January 30, 1992, 205 SCRA 625, 629.
12

Vide Yap v. Paras, id. at 630, holding that it is the issue in the civil action that is prejudicial to the continuation of the criminal action, not the criminal action that is prejudicial to the civil action.
13

G.R. No. 169838, April 25, 2006, 488 SCRA 226. Id. at 251. Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983, 125 SCRA 553. Supra note 13 at 256. Id. at 254-255. Vide supra note 7 at Sec. 6(f).

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15

16

17

18