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KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D.
Ramirez in the Regional Trial Court of Quezon City
alleging that the private respondent, Ester S. Garcia, in a
confrontation in the latter's office, allegedly vexed,
insulted and humiliated her in a "hostile and furious
mood" and in a manner offensive to petitioner's dignity
and personality," contrary to morals, good customs and
public policy." 1
In support of her claim, petitioner produced a verbatim
transcript of the event and sought moral damages,
attorney's fees and other expenses of litigation in the
amount of P610,000.00, in addition to costs, interests
and other reliefs awardable at the trial court's discretion.
MARIANO M. CUNETA
In the same case, the Court further ruled that the conduct
of the party would differ in no way if instead of repeating
the message he held out his hand-set so that another
could hear out of it and that there is no distinction
between that sort of action and permitting an outsider to
use an extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must
be construed strictly in favor of the accused. Thus, in
case of doubt as in the case at bar, on whether or not an
extension telephone is included in the phrase "device or
arrangement", the penal statute must be construed as
not including an extension telephone. In the case of
People v. Purisima, 86 SCRA 542, 562, we explained the
rationale behind the rule:
American jurisprudence sets down the reason for this
rule to be the tenderness of the law of the rights of
individuals; the object is to establish a certain rule by
conformity to which mankind would be safe, and the
discretion of the court limited. (United States v. Harris,
177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin
Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531,
69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE
1080, all cited in 73 Am Jur 2d 452). The purpose is not
to enable a guilty person to escape punishment through
a technicality but to provide a precise definition of
forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in
Martin's Handbook on Statutory Construction, Rev. Ed.
pp. 183-184).
In the same case of Purisima, we also ruled that on the
construction or interpretation of a legislative measure,
the primary rule is to search for and determine the intent
and spirit of the law. A perusal of the Senate
Congressional Records will show that not only did our
lawmakers not contemplate the inclusion of an extension
telephone as a prohibited device or arrangement" but of
greater importance, they were more concerned with
penalizing the act of recording than the act of merely
listening to a telephone conversation.
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Senator Taada. Another possible objection to that is
entrapment which is certainly objectionable. It is made
possible by special amendment which Your Honor may
introduce.
Senator Diokno.Your Honor, I would feel that entrapment
would be less possible with the amendment than without
it, because with the amendment the evidence of
entrapment would only consist of government testimony
3) finding that there was no attempt whatsoever on the part of Justice Yap
nor Solicitor General Ordonez to unduly influence the members of the
First Division.
The Complaint before the Tanodbayan (incorporated herein by reference)
was allegedly filed "in my quest for justice, something that has been
closed to me by the Supreme Court forever" and specifically charged:
thereby making it unjustly appear that the Justices of this Court and the
other respondents were charged with "graft and corruption" when the
Complaint was actually filed by a disgruntled litigant and her counsel
after having lost her case thrice in this Court.
On 26 December 1986, the Tanodbayan (Ombudsman) dismissed
petitioner's Complaint and decreed in the dispositive portion of his
Resolution (herein incorporated by reference) that:
WHEREFORE, all the premises considered, this Office resolves to
dismiss the complaint against Justices Pedro Yap, Isagani Cruz, Andres
Narvasa, Ameurfina Melencio-Herrera, Vicente Abad Santos, and will
continue evaluating the complaint against Justices Serafin Cuevas, Luis
Javellana and Vicente Mendoza, Solicitor General Sedfrey Ordonez and
the private respondents.
2) For causing me and the other heirs such undue injury' by deliberately,
knowingly rendering their unjust RESOLUTION dated 20 January
1984 ... in violation of Republic Act No. 3019, as amended, Section 3 (e)
thereof.
CHARGE NO THREE
Associate Justice Vicente Abad Santos (retired) then Chairman of the
First Division of the Supreme Court as of 14 May 1986, and Associate
Justice Isagani Cruz, Andres Narvasa, Ameurfina M. Herrera and Pedro
Yap, ...
1) For knowingly and deliberately rendering their unjust extended
MINUTE RESOLUTION of 14 May 1986 dismissing my petition in
G.R. No. 68635, ... with manifest and evident bad faith to make the
clients of Atty. Sedfrey A. Ordonez now the distinguished Solicitor
General the 'illegal owners' of the vast estates of my aunt Digna
Maravilla ...;
2) Under Section 3, sub-letter (e) Republic Act No. 3019, as amended, ...
for deliberately causing us heirs of Ponciano Maravilla undue injury by
depriving us of our rights over my aunt's vast estates because of their
manifest and evident bad faith in knowingly promulgating their unjust
extended minute RESOLUTION of 14 May 1986, deliberately intended
to make the clients of Atty. Sedfrey A. Ordonez, now the Solicitor
General the "illegal owners" of my aunt Digna Maravilla's estates when
under the law, these Ordonez clients are not entitled to own these vast
Copy Furnished:
In the Manifestation and Motion, dated June 25, 1986, filed by Atty.
Laureta (p. 311, Rollo), the same phrases were incanted:
the promptitude with which the Resolution of 14 May 1986 was
promulgated (par. 9, Motion for Reconsideration, p. 5) unequaled in the
entire history of the Supreme Court in so far as petitions given due course
is concerned ... (Emphasis given)
Those same terms are reproduced verbatim in the letters ostensibly
authored by respondent Ilustre addressed to the individual Justices whom
respondents have charged. Thus:
We consider the three minute resolutions ... railroaded with such
hurry/promptitude unequalled in the entire history of the Supreme Court
under circumstances that have gone beyond the limits of legal and
judicial ethics" ltr., to Justice Narvasa, p. 2; Itr., to Justice Herrera, p. 2;
Itr., to Justice Cruz, p. 2).
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with such unusual hurry/promptitude unequalled in the entire history of
the Supreme Court (Ltr., to Justice Narvasa, p. 5; Itr., to Justice Herrera,
p. 5; Itr., to Justice Cruz, p. 5).
The same terminologies are reiterated in the Complaint and in the Motion
for Reconsideration filed before the Tanodbayan (p. 2).
Further, in his Manifestation & Motion, dated June 25, 1986, Atty.
Laureta stated:
counsel for petitioner personally inquired from Division Clerk of Court
Corazon Served the following:
(1) When was the above-entitled case deliberated by the First Division?
(2) Are there recorded minutes of such deliberation?
(3) Who among the members of the Division voted for dismissal of the
petition to be promulgated by resolution and who did not, if any?
(4) Who prepared the Resolution? (p.312, Rollo).
Atty. Laureta's obsession to receive the answer to his queries surfaces
again in the second letters dated November 3, 1986 to the individual
Justices under the supposed signatures of respondent Ilustre, thus:
Evidently you misunderstood our point of in our first letter. It is a very
simple inquiry, to wit Did you or did you not approve the dismissal of our
petition under
1) The l4 May l986 minute resoluTion? Yes or No
2) The 9 July l986 minute resoluTion? Yes or No
3) The 3 Sept. 1986 minute resolution? Yes or No. (Emphasis supplied)
ltr., to Justice Narvasa, p. 1; to Justice Herrera, p. 1; to Justice Cruz, p. 1)
Additionally, the disparaging remarks like: exertion of "undue" and
"powerful influence" by Atty. Ordonez and Justice Yap; "distortion of
facts, conjectures and mistaken references"; "untenable minute resolution
although extend. "unjust minute resolution" repeated by Atty. Laureta in
his several pleadings, echoed and re-echoed in the individual letters to the
Justices, as well as in the Complaint and the Motion for Reconsideration
before the Tanodbayan, reveal the not-too-hidden hand of Atty. Laureta.
Pleadings were submitted, the last being on May 3, 1985, which can be
considered as the date when this case was submitted for resolution.
The First Division of seven (7) was not able to act on the case up to the
February, 1986 political upheaval The last incident in the case was a
motion for the early release of decision filed by petitioner on November
19, 1985.
When this Court was reorganized in April of 1986, the membership of the
First Division was reduced to five (5) Justices. Taking account of the
motion of petitioner for early release of decision, the new First Division,
then chairmanned by Justice Abad Santos, realizing that the doctrine of
res judicata was clearly applicable not only as to the probate of the will
but also as to the heirship of petitioner, among others, and their right to
intervene and participate in the proceedings resolved, on May 14,
1986 to dismiss the petition through an extended resolution which at the
same time recalled the due course order. The new Division of 5 acted
unanimously.
The recall of a due course Order after a review of the records of the case
is a common occurrence in the Court. Respondents speak as if it were
only their petition which has been subjected to such recall. They have lost
all objectivity in this regard. They are hardly qualified, and cannot
presume to speak of the I entire history" of the Supreme Court.
As to the participation of Justice Yap in the ease, the "Banc Resolution"
stated:
Justice Yap clarified that he was an official mission to Switzerland for the
Presidential Conunission on Good Government after his appointment to
the Supreme Court an April 11, 1986 and did not assume his position in
the Supreme Court his return on May 2, 1986. When the resolution of
dismissal on May 14, 1986 was issued, Justice Yap was unaware that
Atty. Sedfrey Ordonez was private respondent's counsel.
On June 11, 1986, petitioner filed a motion for reconsideration, which
was taken up by the First Division on July 9, 1986 with Justice Abad
Santos still the Chairman. This time, Justice Yap, realizing that his former
partner, Atty. Ordonez, had submitted the pleadings for petitioner,
inhibited himself and Justice Edgardo L. Paras was designated under
Special Order No. 21, dated July 9, 1986, to sit in the Division in his
place. The motion for reconsideration was denied with finality on July 9,
1986.
Justice Yap was designated Chairman of the First Division on July 14,
1986.
On August 7, 1986, petitioner asked leave to file a second motion for
reconsideration, which was denied on September 3, 1986, entry of
judgment of the May 14, 1986 resolution having been made on July 28,
1986. Justice Yap again took no part in the deliberation of the case.
But respondents continue to claim derisively that Justice Yap could not
have been "unaware" of the appearance of Atty. Sedfrey Ordonez. They
reacted by saying "ten it to the marines" (Letters of November 3, 1986 to
Justices Narvasa, Herrera, and Cruz, at p. 8, respectively). But that was
the true and untarnished fact. With so many cases being handled by the
Court, the appearances of lawyers during deliberative sessions very often
escape attention, concentration being centered on the issues to be
resolved.
Respondents also fault the Court for "still recogniz(ing) Atty. Ordonez as
counsel" for their opponents in the case. In the same " Banc Resolution,"
it was clarified:
A copy of the resolution, dated May 14, 1986, was sent by the Releasing
Clerks to Atty. Sedfrey A. Ordonez as his name still appears on the cover
page of the Rollo. It was not necessarily because the Supreme Court still
recognizes him as counsel for respondents (at p. 4)
The fact of the matter is that even Atty. Laureta continued to recognize
Atty. Ordonez as counsel as shown by his pleadings filed before the
Court, which inevitably contained the notation "copy furnished Atty.
Sedfrey Ordonez." No withdrawal of appearance having been presented
by Atty. Ordonez in the main petition, his name continues to be in the
Rollo of the case and the personnel concerned continue to furnish him
with copies of Resolutions of this Court.
In respect of the charge that the Resolutions of the First Division of May
14, 1986, July 9, 1986 denying the Motion for Reconsideration with
finality, and September 3, 1986 denying leave to file a second motion for
reconsideration since entry of judgment of the May 14, 1986 Resolution
had been made on July 28, 1986, were "unjust" and were "railroaded," the
Banc Resolution, adopting the Division Resolution, explained:
The aforesaid resolutions were by no means 'railroaded.' The pleadings
filed by the parties, as in any other case, were included in the Agenda of
the First Division as soon as feasible. The Division acts promptly on all
Agenda items, and the minutes of its deliberations are released as soon as
possible after Agenda day.
xxx xxx xxx
The dispositions in this case were arrived at after careful study. Because a
case is resolved against the interests of a party, does not mean that it is an
'unjust decision;' or that it has been "railroaded."
This Division declares without hesitation that it has consistently rendered
justice without fear or favor. (at p. 4)
Respondents insist that the doctrine of "res judicata" is inapplicable. In
their own words "the ordered probate of the 1944 Will of Digna
Maravilla by judgment of the Supreme Court in G.R. No. L-23225 is
conclusive only as to the genuineness and due execution of said will but
not upon the validity of testamentary provision, particularly with the
invalid designation of Herminio Maravilla as sole and universal heir of
Digna Maravilla."
On this point, the "Javellana Resolution," in reversing the Busran
Decision" AC-GR SP No. 13680), aptly held:
The then Court of Appeals held that the questioned decision does not run
counter to the decision of the Hon. Supreme Court in G.R. No. L-23225
admitting the will of Digna Maravilla to probate because the latter refers
to the extrinsic validity of the will while the former concerns its intrinsic
validity. We cannot agree with this observation because it is quite clear
from the questioned decision that the will was in effect declared not to
have been freely and voluntarily executed by the deceased Digna
Maravilla but was the result of the evil and fraudulent machinations of
her husband, Herminio Maravilla, and sets aside said will The declaration
that private respondents, as collateral relatives of the deceased Digna
Maravilla, are entitled to her estate, is an indication that the Hon.
respondent Court has nullified the will. Private respondents are not
compulsory heirs and, in the absence of their being named legatees or
devisees in the will, they could only lay claim to the estate of Digna
Maravilla if the latter died without a will, pursuant to Art. 1003 of the
New Civil Code, to wit:
Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias
vs. Comelec, 3 SCRA 1)
The Court has consistently stressed that "the doctrine of separation of
powers calls for the executive, legislative and judicial departments being
left alone to discharge their duties as they see fit (Tan vs. Macapagal, 43
SCRA 677). It has thus maintained in the same way that the judiciary has
a right to expect that neither the President nor Congress would cast doubt
on the mainspring of its orders or decisions, it should refrain from
speculating as to alleged hidden forces at work that could have impelled
either coordinate branch into acting the way it did. The concept of
separation of powers presupposes mutual respect by and between the
three departments of the government. (Tecson vs. Salas, 34 SCRA 275,
286-287)
To allow litigants to go beyond the Court's resolution and claim that the
members acted "with deliberate bad faith" and rendered and "unjust
resolution" in disregard or violation of the duty of their high office to act
upon their own independent consideration and judgment of the matter at
hand would be to destroy the authenticity, integrity and conclusiveness of
such collegiate acts and resolutions and to disregard utterly the
presumption of regular performance of official duty. To allow such
collateral attack would destroy the separation of powers and undermine
the role of the Supreme Court as the final arbiter of all justiciable
disputes.
Dissatisfied litigants and/or their counsels cannot without violating the
separation of powers mandated by the Constitution relitigate in another
forum the final judgment of this Court on legal issues submitted by them
and their adversaries for final determination to and by the Supreme Court
and which fall within the judicial power to determine and adjudicate
exclusively vested by the Constitution in the Supreme Court and in such
inferior courts as may be established by law.
In resume, we find that respondent Ilustre has transcended the
permissible bounds of fair comment and criticism to the detriment of the
orderly administration of justice in her letters addressed to the individual
Justices quoted in the show-cause Resolution of this Court en banc,
particularly the underlined portions thereof; in the language of the
charges she filed before the Tanodbayan quoted and underscored in the
same Resolution; in her statements, conduct, acts and charges against the
Supreme Court and/or the official actions of the Justices concerned and
her ascription of improper motives to them; and in her unjustified
outburst that she can no longer expect justice from this Court. The fact
that said letters are not technically considered pleadings, nor the fact that
they were submitted after the main petition had been finally resolved
does not detract from the gravity of the contempt committed. The
constitutional right of freedom of speech or right to privacy cannot be
used as a shield for contemptuous acts against the Court.
We likewise find that Atty. Laureta has committed acts unbecoming an
officer of the Court for his stance of dangling threats of bringing the
matter to the "proper forum" to effect a change of the Court's adverse
Resolution; for his lack of respect for and exposing to public ridicule, the
two highest Courts of the land by challenging in bad faith their integrity
and claiming that they knowingly rendered unjust judgments (Montecillo
vs. Gica 60 SCRA 234 [1974]); for authoring, or at the very least,
assisting and/or abetting and/or not preventing the contemptuous
statements, conduct, acts and malicious charges of his client, respondent
Ilustre, notwithstanding his disclaimer that he had absolutely nothing to
do with them, which we find disputed by the facts and circumstances of
record as above stated; for totally disregarding the facts and
circumstances and legal considerations set forth in this Court's
Lawi-an's son (tsn, September 16, 1982, pp. 3-7, 11). On reaching the
front yard of the Lawi-ans, Sisneros saw the ac cused Lawi-an at the
window. A lot of people were likewise in the house, and he recognized
Boy Lawi-an and a certain Jun Menez among others. Sisneros called for
accused Lawi-an. The latter went down and they talked downstairs.
Accused Lawi-an explained that he had Sisneros fetched, because the
people inside the house were discussing on what to do with somebody
a Bureau of Forestry employee-later on Identified as Teodoro Carancio
who was also inside the house at the time, and that they were inclined
to kill that person who, according to Lawi-an, was a hindrance to the
farmers, because he (the forester) had caused Lawi-an's uncle and
brother-in-law to be put in jail and fined for cutting trees in the forest.
Shocked, Sisneros could only say "do not do that because killing a person
is great sin toward God." Thereafter, accused Lawi-an went upstairs.
Sisneros who was left downstairs went home (tsn, September 16, 1982,
pp. 11-16, 21).
The following day, at about 9:00 o'clock in the morning, Sisneros was at
his farm when accused Lawi-an and Jun Menez passed by and called him.
When Sisneros got near the two, accused Lawi-an told him that the
forester was already killed and warned him not to reveal this matter to
anybody otherwise he would be killed (tsn, September 16, 1982, pp. 1620.)
The threat to his life caused Sisneros to be cautious in not reporting at
once the matter to the authorities. However, in June 1981, Sisneros
finally reported the killing of that forester to his brother Margarito, a
CHDF member in Bansalan. Margarito then accompanied him to the
municipal hall to see the Chief of Police, P/Sgt. Arnulfo Gohol. Sisneros
related the killing to Sgt. Gohol. That forester must have already been
reported missing, for Sgt. Gohol told Sisneros that the slain forester was
Teodoro Carancio. Sisneros asked that his Identity be kept secret in the
meantime pending the arrest of Albofera and Lawi-an. Sgt. Gohol
acceded (tsn. September 16, 1982, pp. 19-20, 21-22).
The police authorities arrested accused Albofera on July 2, 1981. ...
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contradict with each other even though we have exculpated you we will
instead be together here if how many years will be my sentence yours
will also be the same because I will include you anyway you were present
in the incident nobody force us nobody can witness that you were force
by me because that is not the truth. And Ding, I have not squeal because
it's difficult the other side no jail its's better for the government because
we will just be imprisoned you are the one who win know how to
understand we win help one another in order that no hazard of both of us
anyway you will not be imprisoned of this you will only help me in order
that I can get out here. This is our agreement, is it not.
I hope you will remember our being together before we are very close but
now because we have a misunderstanding but our complainant you do not
even know him will they look back at you after this.
Your mercy
In the course of the trial, the prosecution presented a letter written in the
Visayan dialect by accused Alexander Albofera, while under detention, to
witness Rodrigo Esma several days before the latter testified on October
20, 1982, which was translated into English by the Trial Court interpreter
and reads as follows:
That the Regional Trial Court of Davao del Sur gravely erred in finding
both accused guilty of murder, as charged in the information, and
ordaining a sentence of death, instead of dismissing the charge anchor
absolving them as the entire proceedings on the case in the Municipal
Court of Bansalan up to rendition of judgment in the CFI of Davao del
Sur are void ab initio and a nullity for being tainted with serious
illegalities and jurisdictional infirmities as from the inception of
appellant's illegal arrest, tortures, and detention without bait their
fundamental constitutional and human rights were blatantly violated,
brazenly trampled upon and utterly reduced to naught.
10-5-82
Dear Odeng,
Ding first of all how are you are in good health. As to me if you will also
ask me I am here suffering from hardship, so that Ding, help me that I
can get out in this difficult condition because your affidavit is the one that
has weight. Ding, you go with Mining to my lawyer so that I can study
your reason because I will ride if what is your affidavit. If you will not
appear before the lawyer it will mean that you will pushed us. Ding, you
know about this incident and that I do not want this to happen but you
were the one persisting in fact I asked you and you acceded so that that
happened. But now you are going to put us down will you not pity the
uncle of your wife and furthermore you were not threatened by me we
have agreed about this thing now you will free yourself. Ding you must
bear in mind that you are a part of this if that will happen to me I will
include you so that we will be together in jail anyway your affidavit is
there that you are one of those who apprehended the forestry and Noy
Roming will testify that no one threatened us and also according to him
that he will declare that the two of us apprehended so that the three of us
win be convicted. Ding why is it that we are not going to understand one
another so that we will not be hard-up we have still a way that will be
taught by my lawyer in which we have nothing to fear each one of us.
Anyway you can still be a witness of the other side my lawyer wants to
know only your reason so that he can study this in order that I ran prepare
and ride on it so that you will not be included and I can also get out from
this case because if you will not make any arrangement our reasons will
II
That the Regional Trial Court of Davao del Sur gravely erred-in failing to
consider at all the prosecution's evidence on record, which reasonably
raises doubt upon the conclusiveness of the bases as to the supposed
victim's (1) Identity; (2) his alleged fact of death as stated in the
certificate of death [Exh. D]; (3) the place of death and, the approximate
or credible date of death; and-consequently, in not finding that on the
basis of the above-factual hiatus, the evidence has failed to establish the
guilt of both accused beyond that quantum of reasonable doubt as
zealously mandated by the constitution.
III
That the Court a quo erred in holding that evidence adduced against
accused-appellants conceded to be merely circumstantial in character and
confirmed as such in the appealed decision, has attained such degree of
proof and weight of moral persuasion as to leave no vestige of reasonable
doubt on the guilt of both accused.
IV
V
P R E L I M I N A R Y:
That the Regional Trial Court of Davao del Sur gravely erred in admitting
and considering as competent evidence the illegally extracted extrajudicial confession of accused Alexander Albofera (Exh. C) in violation
of, and contrary to Sec. 20, Art. IV of the Philippine Constitution of 1973
and the Supreme Court's judicial precedents in point.
VI
That the Trial Court gravely erred (1) in sustaining the prosecution's
theory that both accused-appellants were responsible and culpable for the
killing of the alleged victim; (2) in according credence to the testimonies
of prosecution's witnesses Efren Sisneros and Rodrigo K. Esma; (3) in
failing to sustain the defense theory; and (4) in convicting and sentencing
both accused-appellants.
VII
Furthermore, the lower court gravely incurred the following patent
reversible errors: (1) in finding aggravating and qualifying circumstances
in the alleged commission of murder, and (2) in not absolving the two
accused-appellants, and awarding damages. 4
Mr. Albofera, I am reminding you that you are now under investigation in
connection with the commission of an offense, but before I will proceed
in it, I would like to inform you that under the Constitution of the
Philippines it is so provided that you have the right to remain silent, the
right to counsel of your own choice to be present with you while being
investigated, the right to self-incrimination and the right to due process,
do you understand this:
Answer Yes sir, I do.
I would like to inform you further, that the manner in which this
investigation will be conducted in English, but however, the contents of
the same will be interpreted to you in dialect you fully understand and
speak, and if you choose to answer one of the question or questions
propounded to you, your answer will be reduced into writing and the
same will be used in evidence against you or to your favor in any court of
justice in the country, do you understand what I am explaining to you?
Answer Yes. sir, I understand it because you explained it to me clearly.
Do you need then the assistance of counsel to assist you while
investigated?
Answer I think I do not need any yet this time because I know what I
am going to declare here it being the truth of the matter, sir.
Since you do not (have) any lawyer yet, are you willing to proceed with
this investigation and submit yourself freely into it?
3) Whether or not the Identity of the victim and the fact of his death were
duly proved;
Are you willing to swear and sign this statement of yours freely to justify
that your submission into the said investigation is free and voluntary?
Answer Yes sir, I will sign it if only to prove that all what I have stated
are true and to the best of my knowledge and ability.
On Irregularities alleged:
The charge of illegalities and infirmities is absolutely without basis.
There was nothing illegal in the accused's detention without bail. They
were charged with and held for the crime of murder, a capital offense
and, therefore, were not entitled to bail where the evidence of guilt was
strong. That was for the Trial Court to evaluate. The preliminary
investigation was far from being "hasty and farcical." If the second stage
thereof was not held it was because the accused had waived the same and
prayed for the transmittal of the case to the then Court of First Instance
for trial on the merits; it was not because they were deprived of the right.
Much less has due process been denied the accused. They were duly
informed of the charge against them and they were given fun opportunity
to interpose and prove their defense.
Judicial precedents5 have laid down the rule that the foregoing form of
questioning, does not satisfy the Constitutional requirement that an
accused be apprised of his constitutional rights to remain silent and to
counsel. It is, at best, ceremonial and perfunctory, with the answers being
mere formalisms put into the mouth of the affiant. What is contemplated
is the transmission of meaningful information, comprehended by the
person under investigation, not a mere recitation of the Constitutional
mandates.
More, the extra-judicial confession was extracted without the assistance
of counsel contrary to the rulings of this Court in Morales, Jr. vs. Enrile,
No. L-61016, April 26, 1983, 121 SCRA 538, affirmed in People vs.
Galit, No. L-51770, March 20, 1985, 135 SCRA 465, People vs. Burgos,
L-68955, September 4, 1986, 144 SCRA 1, that "no custodial
investigation shall be conducted unless it be in the presence of counsel
after the commission of the crime shows that he acted in concert with his
co-accused Albofera. He indubitably cooperated with the latter and three
other persons in bringing about the death of the victim goaded by
resentment against the latter for his strict enforcement of forestry laws,
which led to the incarceration of Lawi-an's uncle and brother-in-law and
the imposition of fines against them. The circumstances proven
sufficiently establish a community of purpose-a conspiracy among the
perpetrators such that the crime committed in furtherance thereof must
be held to be the act of all regardless of the extent and character of an
accused's active participation.13
On the Attendance of Qualifying and Aggravating Circumstances:
No reversible error was committed by the Trial Court in appreciating the
presence of qualifying and aggravating circumstances.
The killing of the victim was committed treacherously, his hands having
been tied behind his back so that he was totally helpless and defenseless,
and in no position to resist nor fight back. The accused employed means
which tended directly to insure the execution of the crime without risk to
themselves arising from the defense which the victim might have made.
Evident premeditation was likewise present as both accused and their coconspirators had deliberately planned to commit the crime and had
persistently and continuously followed it notwithstanding that they had
ample time to reflect and allow their conscience to overcome their
resolution to kill.14
The killing of the victim because of his strictness and the resentment
against him as a forester constitutes the aggravating circumstance of
disregard of the respect due the offended party on account of his rank,16
and not because the victim was engaged in the discharge of his duties
under Article 14 (5) of the Revised Penal Code as found by the Trial
Court.
With the attendance of the qualifying circumstance of treachery and two
(2) generic aggravating circumstances with no mitigating circumstance to
offset them, the crime committed is Murder and the death penalty
imposed by the Trial Court is proper. However, with the abolition of the
death penalty under Section 19(l), Article III of the 1987 Constitution,
and as mandated therein the death penalty imposed by the Trial Court
should be reduced toreclusion perpetua.
PERFECTO, J.:
(d) The inspection of the said documents is not for the purpose of "fishing
evidence" but with a view to enabling the respondent Lope Sarreal to
designate with the particularity of the subpoena duces tecum to be
obtained in connection with trial of the case on its merits the specific
books and papers containing the entry of receipts and payments made by
the petitioners, such books and papers being material to the case in view,
among others, of the allegation in the amended complaint that the
defendants, the petitioners herein, had been remitting all or the greater
volume of the proceeds from the sales of equipment and materials of the
defendants in Civil Case No. 2059 outside the jurisdiction of the trial
court and had been disposing of their properties with the intention of
defrauding their creditors. At any rate, "fishing expedition" is allowed
and is precisely contemplated in Rule 21 of our Rules of Court as a
weapon of discovery (XXVI Am. Bar. Ass. Jur. No. 1, Jan. 1940, 48;
Golden vs. Arcadia Mutual Casualty Company, D. C. III., 1942, 3 F. R.
D., 26; Leach vs. Griff Bros. Coop. Corp., D. C. Miss, 1942 2 F. R. D.,
444; Civil Aeronautics Board of Aeronautics Authority vs. Canadian
Colonial Airways, D. C., 1941, 41 F. S., 1006; Quemus Theatre Co. vs.
Warner Bros. Pictures, D. C. N. J., 1940, 35 F. S., 949; United Mercantile
Agency vs. Silver Fleet Motor Express, D. C. Ky., 1941, F. R. D., 709;
Walling vs. Richmon Screw Anchor Company, D. C. N. Y., 1943,4 F. R.
D., 265; Monarch Liquor Corp. vs. Schenley Distillers Corp., D. C. N.Y.,
1941, 2 F. R. D., 51; Walsh vs. Comm. Mutual Life Insurance Company
of Hartford, Conn. [1939], 26 F. Supp., 556; Olson Transportation
Companyvs. Socony Vacuum Oil Company, 7 F. R. D., 234).
(e) The originals of Annexes A and B are relevant not only to the case of
the defendants but also to that of the plaintiff in Civil Case No. 2059 here
involved, in view of the issue of fact raised by the pleadings of the parties
as to whether the originals of Annexes A and B have been falsified by the
insertion therein of the names of Gil J. Puyat and Raymond Lehmann
after said Annexes were signed by respondent Lope Sarreal and delivered
to the petitioner Harry Lysons, in view of which respondent Lope Sarreal
is entitled to the production and inspection thereof under the provisions
of Rule 21 of our Rules of Court.
(f) Even if ocular inspection of said Annexes A and B may reveal
falsification thereof by the petitioners amounting to a violation of the
applicable provisions of our Revised Penal Code, the petitioners cannot
exempt themselves from the production of said exhibits for mere
inspection and copying, inasmuch as the Constitutional prohibition
against self-incrimination has been extended in specific case only to the
production of documents as evidence, and only when the person
producing them is made to take the witness stand and identify them under
oath, and not to the production of such documents for mere inspection
(Comm. vs. Southern Express Co., 1914, 160 Ky., 1, 169 SW., 517,
annotated cases 1916A, 373, L. R. A., 1915B, 913; U. S. vs. Hughes, 12
Blatchff, 553); the reason being that the Constitutional prohibition is one
against compelling a person to be a "witness against himself", and this
has been held to meantestimonial compulsion or extraction of admission
form the person's own lips (4 Wigmore, 865, 2263; Wilsonvs. U. S., 55
Law, ed., 776, citing cases).
(g) Moreover, the corporate records sought to be inspected are not
covered by the Constitutional prohibition against self-incrimination, even
though such documents may contain evidence tending to subject any or
all of the officers of a corporation to a criminal indictment (Wilson vs. U.
S., 221 U. S., 361, 51 Law. ed., 771; Oklahoma Press Pub. Co. vs.
Walling, 327 U. S.,186, 90 Law. ed., 614, 627-629; U. S. vs. Baunch &
Lamp Optical Co., 321U. S., 707, 88 Law. ed., 1024, 1037 [1944]; U. S.
vs. White, 88 Law. ed., 1547).
(3) The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizure shall not be
violated, and no warrant shall issue but upon probable cause, to be
determined 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." (Sec. 1. Art. III, Constitution of the Philippines.)
Dr. Martin brought this action below for recovery of the documents and
papers and for damages against petitioner. The case was filed with the
Regional Trial Court of Manila, Branch X, which, after trial, rendered
judgment for private respondent, Dr. Alfredo Martin, declaring him the
capital/exclusive owner of the properties described in paragraph 3 of
plaintiffs Complaint or those further described in the Motion to Return
and Suppress and ordering Cecilia Zulueta and any person acting in her
behalf to immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and
attorneys fees; and to pay the costs of the suit. The writ of preliminary
injunction earlier issued was made final and petitioner Cecilia Zulueta
and her attorneys and representatives were enjoined from using or
submitting/admitting as evidence the documents and papers in question.
On appeal, the Court of Appeals affirmed the decision of the Regional
Trial Court. Hence this petition.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to
no more than a declaration that his use of the documents and papers for
the purpose of securing Dr. Martins admission as to their genuiness and
authenticity did not constitute a violation of the injunctive order of the
trial court. By no means does the decision in that case establish the
admissibility of the documents and papers in question.
March 5, 1992
March 5, 1992
March 5, 1992
xxx
xxx
b)
for any newspapers, radio broadcasting or television station,
other mass media, or any person making use of the mass media to sell or
to give free of charge print space or air time for campaign or other
political purposes except to the Commission as provided under Sections
90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any
elective public office shall take a leave of absence from his work as such
during the campaign period. (Emphasis supplied)
Section 11 (b) of Republic Act No. 6646 should be taken together with
Sections 90 and 92 of B.P. Blg. 881, known as the Omnibus Election
Code of the Philippines, which provide respectively as follows:
Sec. 90. Comelec space. The Commission shall procure space in at
least one newspaper of general circulation in every province or city:
Provided, however, That in the absence of said newspaper, publication
shall be done in any other magazine or periodical in said province or city,
which shall be known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be allocated, free of charge,
equally and impartially by the Commission among all candidates within
the area in which the newspaper is circulated.xxx xxx
xxx
Sec. 92. Comelec time. The Commission shall procure radio and
television time to be known as "Comelec Time" which shall be allocated
equally and impartially among the candidates within the area of coverage
of all radio and television stations. For this purpose, the franchise of all
radio broadcasting and television stations are hereby amended so as to
provide radio or television time, free of charge, during the period of the
campaign. (Emphasis supplied)
The objective which animates Section 11 (b) is the equalizing, as far as
practicable, the situations of rich and poor candidates by preventing the
former from enjoying the undue advantage offered by huge campaign
"war chests." Section 11 (b) prohibits the sale or donation of print space
and air time "for campaign or other political purposes" except to the
Commission on Elections ("Comelec"). Upon the other hand, Sections 90
and 92 of the Omnibus Election Code require the Comelec to procure
"Comelec space" in newspapers of general circulation in every province
or city and "Comelec time" on radio and television stations. Further, the
Comelec is statutorily commanded to allocate "Comelec space" and
"Comelec time" on a free of charge, equal and impartial basis among all
limitation of the rights of free speech and free press. For supervision or
regulation of the operations of media enterprises is scarcely conceivable
without such accompanying limitation. Thus, the applicable rule is the
general, time-honored one that a statute is presumed to be
constitutional and that the party asserting its unconstitutionality must
discharge the burden of clearly and convincingly proving that assertion. 3
Put in slightly different terms, there appears no present necessity to fall
back upon basic principles relating to the police power of the State and
the requisites for constitutionally valid exercise of that power. The
essential question is whether or not the assailed legislative or
administrative provisions constitute a permissible exercise of the power
of supervision or regulation of the operations of communication and
information enterprises during an election period, or whether such act has
gone beyond permissible supervision or regulation of media operations so
as to constitute unconstitutional repression of freedom of speech and
freedom of the press. The Court considers that Section 11 (b) has not
gone outside the permissible bounds of supervision or regulation of
media operations during election periods.
In the constitutional assaying of legislative provisions like Section 11 (b),
the character and extent of the limitations resulting from the particular
measure being assayed upon freedom of speech and freedom of the press
are essential considerations. It is important to note that the restrictive
impact upon freedom of speech and freedom of the press of Section 11
(b) is circumscribed by certain important limitations.
Firstly, Section 11 (b) is limited in the duration of its applicability and
enforceability. By virtue of the operation of Article IX (C) (4) of the
Constitution, Section 11 (b) is limited in its applicability in time to
election periods. By its Resolution No. 2328 dated 2 January 1992, the
Comelec, acting under another specific grant of authority by the
Constitution (Article IX [C] [9]), has defined the period from 12 January
1992 until 10 June 1992 as the relevant election period.
Secondly, and more importantly, Section 11 (b) is limited in its scope of
application. Analysis of Section 11 (b) shows that it purports to apply
only to the purchase and sale, including purchase and sale disguised as a
donation, 4 of print space and air time for "campaign or other political
purposes." Section 11 (b) does not purport in any way to restrict the
reporting by newspapers or radio or television stations of news or newsworthy events relating to candidates, their qualifications, political parties
and programs of government. Moreover, Section 11 (b) does not reach
commentaries and expressions of belief or opinion by reporters or
broadcasters or editors or commentators or columnists in respect of
candidates, their qualifications, and programs and so forth, so long at
least as such comments, opinions and beliefs are not in fact
advertisements for particular candidates covertly paid for. In sum, Section
11 (b) is not to be read as reaching any report or commentary other
coverage that, in responsible media, is not paid for by candidates for
political office. We read Section 11 (b) as designed to cover only paid
political advertisements of particular candidates.
The above limitation in scope of application of Section 11 (b) that it
does not restrict either the reporting of or the expression of belief or
opinion or comment upon the qualifications and programs and activities
of any and all candidates for office constitutes the critical distinction
which must be made between the instant case and that of Sanidad v.
Commission on Elections. 5 In Sanidad, the Court declared
unconstitutional Section 19 of Comelec Resolution No. 2167 which
provided as follows:
May 5, 2001
forward can easily show a rational connection between the statute and a
legitimate governmental purpose. In contrast, the balancing of interest
undertaken by then Justice Castro in Gonzales v. COMELEC,7 from
which the dissent in this case takes its cue, was a strong one resulting in
his conclusion that , 50-B of R.A. No. 4880, which limited the period of
election campaign and partisan political activity, was an unconstitutional
abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there
are other countries - 78, according to the Solicitor General, while the
dissent cites 28 - which similarly impose restrictions on the publication of
election surveys. At best this survey is inconclusive. It is note worthy that
in the United States no restriction on the publication of election survey
results exists. It cannot be argued that this is because the United States is
a mature democracy. Neither are there laws imposing an embargo on
survey results, even for a limited period, in other countries. As pointed
out by petitioners, the United Kingdom, Austria, Belgium, Denmark,
Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the
Netherlands, Norway, Sweden, and Ukraine, some of which are no older
nor more mature than the Philippines in political development, do not
restrict the publication of election survey results.
What test should then be employed to determine the constitutional
validity of 5.4? The United States Supreme Court, through Chief Justice
Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the
constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression
and press] is no greater than is essential to the furtherance of that
interest.8
This is so far the most influential test for distinguishing content-based
from content neutral regulations and is said to have "become canonical in
the review of such laws."9 is noteworthy that the O 'Brien test has been
applied by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such governmental
interest is "not unrelated to the Expression of free expression." Moreover,
even if the purpose is unrelated to the suppression of free speech, the law
should nevertheless be invalidated if the restriction on freedom of
expression is greater than is necessary to achieve the governmental
purpose in question.
Our inquiry should accordingly focus on these two considerations as
applied to 5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the
causal connection of expression to the asserted governmental interest
makes such interest "not related to the suppression of free expression."
By prohibiting the publication of election survey results because of the
possibility that such publication might undermine the integrity of the
election, 5.4 actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same subject matter by
newspaper columnists, radio and TV commentators, armchair theorists,
and other opinion takers. In effect, 5.4 shows a bias for a particular
subject matter, if not viewpoint, by referring personal opinion to
statistical results. The constitutional guarantee of freedom of expression
means that "the government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content."11 The
On the other hand, the COMELEC contends that under Art. IX-A, 7 of
the Constitution, its decisions, orders, or resolution may be reviewed by
this Court only certiorari. The flaws in this argument is that it assumes
that its Resolution 3636, March 1, 2001 is a "decision, order, or
resolution" within the meaning of Art. IX-A, 7. Indeed, counsel for
COMELEC maintain that Resolution 3636 was "rendered" by the
Commission. However, the Resolution does not purport to adjudicate the
right of any party. It is not an exercise by the COMELEC of its
adjudicatory power to settle the claims of parties. To the contrary,
Resolution 3636 clearly states that it is promulgated to implement the
provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's
claim that this petition for prohibition is inappropriate. Prohibition has
been fund appropriate for testing the constitutionality of various election
laws, rules, and regulations.19
Need more opinions for this particular program. Please subject to more
opinions.
(2)
Exhibit "A-1," respondent Board's Voting Slip for Television
showing its September 11, 1992 subsequent action on petitioner's Series
No. 115 as follows: 3
(1)
Exhibit "A," respondent Board's Voting Slip for Television
showing its September 9, 1992 action on petitioner's Series No. 115 as
follows: 2
REMARKS:
There are some inconsistencies in the particular program as it is very
surprising for this program to show series of Catholic ceremonies and
also some religious sects and using it in their discussion about the bible.
There are remarks which are direct criticism which affect other religions.
REMARKS:
This program is criticizing different religions, based on their own
interpretation of the Bible.
We suggest that the program should delve on explaining their own faith
and beliefs and avoid attacks on other faith.
(3)
Exhibit "B," respondent Board's Voting Slip for Television
showing its October 9, 1992 action on petitioner's Series No. 119, as
follows: 4
REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says
that our (Catholic) veneration of the Virgin Mary is not to be condoned
because nowhere it is found in the bible that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship
and decision.
(4)
Exhibit "C," respondent Board's Voting Slip for Television
showing its October 20, 1992 action on petitioner's Series No. 121 as
follows: 5
After evaluating the evidence of the parties, the trial court issued a writ of
preliminary injunction on petitioner's bond o P10,000.00.
REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks,
they do on, specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are
right and the rest are wrong, which they clearly present in this episode.
(5)
Exhibit "D," respondent Board's Voting Slip for Television
showing its November 20, 1992 action on petitioner's Series No. 128 as
follows: 6
REMARKS:The episode presented criticizes the religious beliefs of the
Catholic and Protestant's beliefs.
We suggest a second review.
(6)
Exhibits "E," "E-1," petitioner's block time contract with ABSCBN Broadcasting Corporation dated September 1, 1992. 7
(7)
Exhibit "F," petitioner's Airtime Contract with Island
Broadcasting Corporation. 8
(8)
Exhibit "G," letter dated December 18, 1992 of former
Executive Secretary Edelmiro A. Amante, Sr., addressed for Henrietta S.
Mendez reversing the decision of the respondent Board which x-rated the
showing of petitioner's Series No. 129. The letter reads in part:xxx
xxx
xxx
The television episode in question is protected by the constitutional
guarantee of free speech and expression under Article III, section 4 of the
1987 Constitution.
We have viewed a tape of the television episode in question, as well as
studied the passages found by MTRCB to be objectionable and we find
no indication that the episode poses any clear and present danger
sufficient to limit the said constitutional guarantee.
(9)
Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo
C. Ramos, Sr., addressed to President Fidel V. Ramos appealing the
action of the respondent Board x-rating petitioner's Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1)
Exhibit "1," Permit Certificate for Television Exhibition No.
15181 dated December 18, 1992 allowing the showing of Series No. 128
under parental guidance.
(2)
(3)
Exhibit "3," letter dated October 12, 1992 of Henrietta S.
Mendez, addressed to the Christian Era Broadcasting Service which reads
in part:xxx
xxx
xxx
In the matter of your television show "Ang Iglesia ni Cristo" Series No.
119, please be informed that the Board was constrained to deny your
show a permit to exhibit. The material involved constitute an attack
The trial court set the pre-trial of the case and the parties submitted their
pre-trial briefs. 9 The pre-trial briefs show that the parties' evidence is
basically the evidence they submitted in the hearing of the issue of
preliminary injunction. The trial of the case was set and reset several
times as the parties tried to reach an amicable accord. Their efforts failed
and the records show that after submission of memoranda, the trial court
rendered a Judgment, 10 on December 15, 1993, the dispositive portion
of which reads:xxx xxx
xxx
WHEREFORE, judgment is hereby rendered ordering respondent Board
of Review for Moving Pictures and Television (BRMPT) to grant
petitioner Iglesia ni Cristo the necessary permit for all the series of "Ang
Iglesia ni Cristo" program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending
and attacking other existing religions in showing "Ang Iglesia ni Cristo"
program.
SO ORDERED.
Petitioner moved for reconsideration 11 praying: (a) for the deletion of
the second paragraph of the dispositive portion of the Decision, and (b)
for the Board to be perpetually enjoined from requiring petitioner to
submit for review the tapes of its program. The respondent Board
opposed the motion. 12 On March 7, 1993, the trial court granted
petitioner's Motion for Reconsideration. It ordered: 13
xxx
xxx
xxx
II
iv)
Those which serve no other purpose but to satisfy the market
for violence or pornography;
v)
drugs;
vi)
Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead;
vii)
Those which may constitute contempt of court or of any quasijudicial tribunal, or pertain to matters which are subjudice in nature
(emphasis ours).
The law gives the Board the power to screen, review and examine all
"television programs." By the clear terms of the law, the Board has the
power to "approve, delete . . . and/or prohibit the . . . exhibition and/or
television broadcast of . . . television programs . . ." The law also directs
the Board to apply "contemporary Filipino cultural values as standard" to
determine those which are objectionable for being "immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines and its people, or with a dangerous tendency
to encourage the commission of violence or of a wrong or crime."
Petitioner contends that the term "television program" should not include
religious programs like its program "Ang Iglesia ni Cristo." A contrary
interpretation, it is urged, will contravene section 5, Article III of the
Constitution which guarantees that "no law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed."
We reject petitioner's submission which need not set us adrift in a
constitutional voyage towards an uncharted sea. Freedom of religion has
been accorded a preferred status by the framers of our fundamental laws,
past and present. We have affirmed this preferred status well aware that it
is "designed to protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs, to profess his beliefs,
and to live as he believes he ought to live, consistent with the liberty of
others and with the common good." 16 We have also laboriously defined
in our jurisprudence the intersecting umbras and penumbras of the right
to religious profession and worship. To quote the summation of Mr.
Justice Isagani Cruz, our well-known constitutionalist: 17
Religious Profession and Worship
c)
To approve, delete objectionable portion from and/or prohibit
the importation, exportation, production, copying, distribution, sale,
lease, exhibition and/or television broadcast of the motion pictures,
television programs and publicity materials, subject of the preceding
paragraph, which, in the judgment of the BOARD applying contemporary
Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of
the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or
crime, such as but not limited to:
i)
Those which tend to incite subversion, insurrection, rebellion
or sedition against the State, or otherwise threaten the economic and/or
political stability of the State;
ii)
Those which tend to undermine the faith and confidence of the
people, their government and/or duly constituted authorities;
iii)
The right to religious profession and worship has a two-fold aspect, viz.,
freedom to believe and freedom to act on one's beliefs. The first is
absolute as long as the belief is confined within the realm of thought. The
second is subject to regulation where the belief is translated into external
acts that affect the public welfare.
(1)
Freedom to Believe
they cannot prove." Every one has a right to his beliefs and he may not be
called to account because he cannot prove what he believes.
(2)
But where the individual externalizes his beliefs in acts or omissions that
affect the public, his freedom to do so becomes subject to the authority of
the State. As great as this liberty may be, religious freedom, like all the
other rights guaranteed in the Constitution, can be enjoyed only with a
proper regard for the rights of others. It is error to think that the mere
invocation of religious freedom will stalemate the State and render it
impotent in protecting the general welfare. The inherent police power can
be exercised to prevent religious practices inimical to society. And this is
true even if such practices are pursued out of sincere religious conviction
and not merely for the purpose of evading the reasonable requirements or
prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on
religious freedom terminated disabilities, it did not create new privileges.
It gave religious liberty, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law
because of religious dogma.
Accordingly, while one has lull freedom to believe in Satan, he may not
offer the object of his piety a human sacrifice, as this would be murder.
Those who literally interpret the Biblical command to "go forth and
multiply" are nevertheless not allowed to contract plural marriages in
violation of the laws against bigamy. A person cannot refuse to pay taxes
on the ground that it would be against his religious tenets to recognize
any authority except that of God alone. An atheist cannot express in his
disbelief in act of derision that wound the feelings of the faithful. The
police power can validly asserted against the Indian practice of the suttee,
born of deep religious conviction, that calls on the widow to immolate
herself at the funeral pile of her husband.
We thus reject petitioner's postulate that its religious program is per se
beyond review by the respondent Board. Its public broadcast on TV of its
religious program brings it out of the bosom of internal belief. Television
is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by
the State when it will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals,
or public welfare. A laissez faire policy on the exercise of religion can be
seductive to the liberal mind but history counsels the Court against its
blind adoption as religion is and continues to be a volatile area of concern
in our country today. Across the sea and in our shore, the bloodiest and
bitterest wars fought by men were caused by irreconcilable religious
differences. Our country is still not safe from the recurrence of this
stultifying strife considering our warring religious beliefs and the
fanaticism with which some of us cling and claw to these beliefs. Even
now, we have yet to settle the near century old strife in Mindanao, the
roots of which have been nourished by the mistrust and misunderstanding
between our Christian and Muslim brothers and sisters. The bewildering
rise of weird religious cults espousing violence as an article of faith also
proves the wisdom of our rule rejecting a strict let alone policy on the
exercise of religion. For sure, we shall continue to subject any act
pinching the space for the free exercise of religion to a heightened
scrutiny but we shall not leave its rational exercise to the irrationality of
man. For when religion divides and its exercise destroys, the State should
not stand still.
however, unclean they may be. Under our constitutional scheme, it is not
the task of the State to favor any religion by protecting it against an
attack by another religion. Religious dogmas and beliefs are often at war
and to preserve peace among their followers, especially the fanatics, the
establishment clause of freedom of religion prohibits the State from
leaning towards any religion. Vis-a-vis religious differences, the State
enjoys no banquet of options. Neutrality alone is its fixed and immovable
stance. In fine, respondent board cannot squelch the speech of petitioner
Iglesia ni Cristo simply because it attacks other religions, even if said
religion happens to be the most numerous church in our country. In a
State where there ought to be no difference between the appearance and
the reality of freedom of religion, the remedy against bad theology is
better theology. The bedrock of freedom of religion is freedom of thought
and it is best served by encouraging the marketplace of dueling ideas.
When the luxury of time permits, the marketplace of ideas demands that
speech should be met by more speech for it is the spark of opposite
speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against
another religion" in x-rating the religious program of petitioner. Even a
sideglance at section 3 of PD No. 1986 will reveal that it is not among the
grounds to justify an order prohibiting the broadcast of petitioner's
television program. The ground "attack against another religion" was
merely added by the respondent Board in its Rules. 21 This rule is void
for it runs smack against the hoary doctrine that administrative rules and
regulations cannot expand the letter and spirit of the law they seek to
enforce.
It is opined that the respondent board can still utilize" attack against any
religion" as a ground allegedly ". . . because section 3 (c) of PD No. 1986
prohibits the showing of motion pictures, television programs and
publicity materials which are contrary to law and Article 201 (2) (b) (3)
of the Revised Penal Code punishes anyone who exhibits "shows which
offend any race or religion." We respectfully disagree for it is plain that
the word "attack" is not synonymous with the word "offend." Moreover,
Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to
justify the subsequent punishment of a show which offends any religion.
It cannot be utilized to justify prior censorship of speech. It must be
emphasized that E.O. 876, the law prior to PD 1986, included "attack
against any religion" as a ground for censorship. The ground was not,
however, carried over by PD 1986. Its deletion is a decree to disuse it.
There can be no other intent. Indeed, even the Executive Department
espouses this view.
Thus, in an Opinion dated November 28, 1985 then Minister of Justice,
now President of the Senate, Neptali Gonzales explained:xxx
xxx
xxx
However, the question whether the BRMPT (now MTRCB) may preview
and censor the subject television program of INC should be viewed in the
light of the provision of Section 3, paragraph (c) of PD 1986, which is
substantially the same as the provision of Section 3, paragraph (c) of E.O.
No. 876-A, which prescribes the standards of censorship, to wit:
"immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people or with dangerous
tendency to encourage the commission of violence, or of a wrong" as
determined by the Board, "applying contemporary Filipino cultural
values as standard." As stated, the intention of the Board to subject the
INC's television program to "previewing and censorship is prompted by
the fact that its religious program makes mention of beliefs and practices
of other religion." On the face of the law itself, there can conceivably be
no basis for censorship of said program by the Board as much as the
alleged reason cited by the Board does not appear to he within the
While the thesis has a lot to commend itself, we are not ready to hold that
it is unconstitutional for Congress to grant an administrative body quasijudicial 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 set-up in Sotto vs. Ruiz, 34 viz.:
The use of the mails by private persons is in the nature of a privilege
which can be regulated in order to avoid its abuse. Persons posses no
absolute right to put into the mail anything they please, regardless of its
character.
On the other hand, the exclusion of newspaper and other publications
from the mails, in the exercise of executive power, is extremely delicate
in nature and can only be justified where the statute is unequivocably
applicable to the supposed objectionable publication. In excluding any
publication for the mails, the object should be not to interfere with the
freedom of the press or with any other fundamental right of the people.
This is the more true with reference to articles supposedly libelous than to
other particulars of the law, since whether an article is or is not libelous,
is fundamentally a legal question. In order for there to be due process of
law, the action of the Director of Posts must be subject to revision by the
courts in case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727;
To be sure, legal scholars in the United States are still debating the
proposition whether or not courts alone are competent to decide whether
speech is constitutionally protected. 35 The issue involves highly
arguable policy considerations and can be better addressed by our
legislators.
SANDOVAL-GUTIERREZ, J.:
For our resolution is the petition for review on certiorari under Rule 45
of the 1997 Rules of Court, as amended, filed by petitioner Movie and
Television Review and Classification Board (MTRCB) against ABSCBN Broadcasting Corporation (ABS-CBN) and former Senator Loren
Legarda, respondents, assailing the (a) Decision dated November 18,
1997,1 and (b) Order dated August 26, 20022 of the Regional Trial Court,
Branch 77, Quezon City, in Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN
aired "Prosti-tuition," an episode of the television (TV) program "The
Inside Story" produced and hosted by respondent Legarda. It depicted
female students moonlighting as prostitutes to enable them to pay for
their tuition fees. In the course of the program, student prostitutes, pimps,
customers, and some faculty members were interviewed. The Philippine
Womens University (PWU) was named as the school of some of the
students involved and the facade of PWU Building at Taft Avenue,
Manila conspicuously served as the background of the episode.
Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing
Co. vs. Murray [1916]. 23 - Fed., 773)
19865 and Section 3,6 Chapter III and Section 7, 7 Chapter IV of the
MTRCB Rules and Regulations.8
If this Court, in Iglesia ni Cristo, did not exempt religious programs from
the jurisdiction and review power of petitioner MTRCB, with more
reason, there is no justification to exempt therefrom "The Inside Story"
which, according to respondents, is protected by the constitutional
provision on freedom of expression and of the press, a freedom
bearing no preferred status.
The only exceptions from the MTRCBs power of review are those
expressly mentioned in Section 7 of P. D. No. 1986, such as (1) television
programs imprinted or exhibited by the Philippine Government and/or its
departments and agencies, and (2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for
any person or entity to exhibit or cause to be exhibited in any
moviehouse, theatre, or public place or by television within the
Philippines any motion picture, television program or publicity material,
including trailers, and stills for lobby displays in connection with motion
pictures, not duly authorized by the owner or his assignee and passed by
the BOARD; or to print or cause to be printed on any motion picture to
be exhibited in any theater or public place or by television a label or
notice showing the same to have been officially passed by the BOARD
when the same has not been previously authorized, except motion
pictures, television programs or publicity material imprinted or
exhibited by the Philippine Government and/or its departments and
agencies, and newsreels."
Still in a desperate attempt to be exempted, respondents contend that the
"The Inside Story" falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define "newsreels." Websters dictionary defines
newsreels as short motion picture films portraying or dealing with current
events.33 A glance at actual samples of newsreels shows that they are
mostly reenactments of events that had already happened. Some concrete
examples are those of Dziga Vertovs RussianKino-Pravda newsreel
series (Kino-Pravda means literally "film-truth," a term that was later
translated literally into the French cinema verite) and Frank Capras Why
We Fight series.34 Apparently, newsreels are straight presentation of
events. They are depiction of "actualities." Correspondingly, the
MTRCB Rules and Regulations 35 implementing P. D. No. 1986 define
newsreels as "straight news reporting, as distinguished from news
analyses, commentaries and opinions. Talk shows on a given issue are
not considered newsreels."36 Clearly, the "The Inside Story" cannot be
considered a newsreel. It is more of a public affairs program which is
described as a variety of news treatment; a cross between pure television
news and news-related commentaries, analysis and/or exchange of
opinions.37 Certainly, such kind of program is within petitioners
review power.
It bears stressing that the sole issue here is whether petitioner MTRCB
has authority to review "The Inside Story." Clearly, we are not called
upon to determine whether petitioner violated Section 4, Article III (Bill
of Rights) of the Constitution providing that no law shall be passed
abridging the freedom of speech, of oppression or the press. Petitioner
did not disapprove or ban the showing of the program. Neither did it
cancel respondents permit. Respondents were merely penalized for their
failure to submit to petitioner "The Inside Story" for its review and
approval. Therefore, we need not resolve whether certain provisions of P.
D. No. 1986 and the MTRCB Rules and Regulations specified by
respondents contravene the Constitution.
Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d),
4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB
Rules and Regulations are unconstitutional. It is settled that no question
involving the constitutionality or validity of a law or governmental act
may be heard and decided by the court unless there is compliance with
the legal requisites for judicial inquiry, namely: (1) that the question must
be raised by the proper party; (2) that there must be an actual case or
controversy; (3) that the question must be raised at the earliest possible
opportunity; and, (4) that the decision on the constitutional or legal
question must be necessary to the determination of the case itself.38
When these rights race against one another, jurisprudence 7 tells us that
the right of the accused must be preferred to win.
With the possibility of losing not only the precious liberty but also the
very life of an accused, it behooves all to make absolutely certain that an
accused receives a verdict solely on the basis of a just and dispassionate
judgment, a verdict that would come only after the presentation of
credible evidence testified to by unbiased witnesses unswayed by any
kind of pressure, whether open or subtle, in proceedings that are devoid
of histrionics that might detract from its basic aim to ferret veritable facts
free from improper influence, 8 and decreed by a judge with an
unprejudiced mind, unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until the
contrary is proved in a trial that is not lifted above its individual settings
nor made an object of public's attention9 and where the conclusions
reached are induced not by any outside force or influence 10 but only by
evidence and argument given in open court, where fitting dignity and
calm ambiance is demanded.
Witnesses and judges may very well be men and women of fortitude, able
to thrive in hardy climate, with every reason to presume firmness of mind
and resolute endurance, but it must also be conceded that "television can
work profound changes in the behavior of the people it focuses on."11
Even while it may be difficult to quantify the influence, or pressure that
media can bring to bear on them directly and through the shaping of
public opinion, it is a fact, nonetheless, that, indeed, it does so in so many
ways and in varying degrees. The conscious or unconscious effect that
such a coverage may have on the testimony of witnesses and the decision
of judges cannot be evaluated but, it can likewise be said, it is not at all
unlikely for a vote of guilt or innocence to yield to it. 12 It might be
farcical to build around them an impregnable armor against the influence
of the most powerful media of public opinion.13
To say that actual prejudice should first be present would leave to near
nirvana the subtle threats to justice that a disturbance of the mind so
indispensable to the calm and deliberate dispensation of justice can
create.14 The effect of television may escape the ordinary means of proof,
but it is not far-fetched for it to gradually erode our basal conception of a
trial such as we know it now. 15
An accused has a right to a public trial but it is a right that belongs to
him, more than anyone else, where his life or liberty can be held critically
in balance. A public trial aims to ensure that he is fairly dealt with and
would not be unjustly condemned and that his rights are not
compromised in secrete conclaves of long ago. A public trial is not
synonymous with publicized trial; it only implies that the court doors
must be open to those who wish to come, sit in the available seats,
conduct themselves with decorum and observe the trial process. In the
constitutional sense, a courtroom should have enough facilities for a
reasonable number of the public to observe the proceedings, not too small
as to render the openness negligible and not too large as to distract the
trial participants from their proper functions, who shall then be totally
free to report what they have observed during the proceedings. 16
The courts recognize the constitutionally embodied freedom of the press
and the right to public information. It also approves of media's exalted
power to provide the most accurate and comprehensive means of
conveying the proceedings to the public and in acquainting the public
with the judicial process in action; nevertheless, within the courthouse,
be invited anew and risk the relative stability that has thus far been
achieved? The transcendental events in our midst do not allow us to turn
a blind eye to yet another possible extraordinary case of mass action
being allowed to now creep into even the business of the courts in the
dispensation of justice under a rule of law. At the very least, a change in
the standing rule of the court contained in its resolution of 23 October
1991 may not appear to be propitious.
Unlike other government offices, courts do not express the popular will
of the people in any sense which, instead, are tasked to only adjudicate
justiciable controversies on the basis of what alone is submitted before
them.27 A trial is not a free trade of ideas, Nor is a competing market of
thoughts the known test of truth in a courtroom.28
The Court is not all that umnindful of recent technological and scientific
advances but to chance forthwith the life or liberty of any person in a
hasty bid to use and apply them, even before ample safety nets are
provided and the concerns heretofore expressed are aptly addressed, is a
price too high to pay.
WHEREFORE, the petition is DENIED.
G.R. No. L-32717 November 26, 1970
AMELITO
R.
vs.
COMMISSION ON ELECTIONS, respondent.
MUTUC,
FERNANDO, J.:
The invocation of his right to free speech by petitioner Amelito Mutuc,
then a candidate for delegate to the Constitutional Convention, in this
special civil action for prohibition to assail the validity of a ruling of
respondent Commission on Elections enjoining the use of a taped jingle
for campaign purposes, was not in vain. Nor could it be considering the
conceded absence of any express power granted to respondent by the
Constitutional Convention Act to so require and the bar to any such
implication arising from any provision found therein, if deference be paid
to the principle that a statute is to be construed consistently with the
fundamental law, which accords the utmost priority to freedom of
expression, much more so when utilized for electoral purposes. On
November 3, 1970, the very same day the case was orally argued, five
days after its filing, with the election barely a week away, we issued a
minute resolution granting the writ of prohibition prayed for. This
opinion is intended to explain more fully our decision.
In this special civil action for prohibition filed on October 29, 1970,
petitioner, after setting forth his being a resident of Arayat, Pampanga,
and his candidacy for the position of delegate to the Constitutional
Convention, alleged that respondent Commission on Elections, by a
telegram sent to him five days previously, informed him that his
certificate of candidacy was given due course but prohibited him from
using jingles in his mobile units equipped with sound systems and loud
speakers, an order which, according to him, is "violative of [his]
constitutional right ... to freedom of speech." 1 There being no plain,
speedy and adequate remedy, according to petitioner, he would seek a
writ of prohibition, at the same time praying for a preliminary injunction.
On the very next day, this Court adopted a resolution requiring
respondent Commission on Elections to file an answer not later than
November 2, 1970, at the same time setting the case for hearing for
Tuesday November 3, 1970. No preliminary injunction was issued. There
3. Nor is this all. The concept of the Constitution as the fundamental law,
setting forth the criterion for the validity of any public act whether
proceeding from the highest official or the lowest functionary, is a
postulate of our system of government. That is to manifest fealty to the
rule of law, with priority accorded to that which occupies the topmost
rung in the legal hierarchy. The three departments of government in the
discharge of the functions with which it is entrusted have no choice but to
yield obedience to its commands. Whatever limits it imposes must be
observed. Congress in the enactment of statutes must ever be on guard
lest the restrictions on its authority, whether substantive or formal, be
transcended. The Presidency in the execution of the laws cannot ignore or
disregard what it ordains. In its task of applying the law to the facts as
found in deciding cases, the judiciary is called upon to maintain inviolate
what is decreed by the fundamental law. Even its power of judicial
review to pass upon the validity of the acts of the coordinate branches in
the course of adjudication is a logical corollary of this basic principle that
the Constitution is paramount. It overrides any governmental measure
that fails to live up to its mandates. Thereby there is a recognition of its
being the supreme law.
as to costs.
G.R. No. L-27833
The task is not easy, but it is unavoidable. That is of the very essence of
judicial duty. To paraphrase a landmark opinion, 1 when we act in these
matters we do so not on the assumption that to us is granted the requisite
knowledge to set matters right, but by virtue of the responsibility we
cannot escape under the Constitution, one that history authenticates, to
pass upon every assertion of an alleged infringement of liberty, when our
competence is appropriately invoked.
This then is the crucial question: Is there an infringement of liberty?
Petitioners so alleged in his action, which they entitled Declaratory Relief
with Preliminary Injunction, filed on July 22, 1967, a proceeding that
should have been started in the of Court of First Instance but treated by
this Court as one of prohibition in view of the seriousness and the
urgency of the constitutional issue raised. Petitioners challenged the
validity of two new sections now included in the Revised Election Code,
under Republic Act No. 4880, which was approved and took effect on
June 17, 1967, prohibiting the too early nomination of candidates 2 and
limiting the period of election campaign or partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political
activity" are likewise defined. The former according to Act No. 4880
"refers to any person aspiring for or seeking an elective public office
regarded of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate."
"Election campaign" or "partisan political activity" refers to acts designed
to have a candidate elected or not or promote the candidacy of a person or
persons to a public office." Then the acts were specified. There is a
case such that he has sustained, or will sustain, direct injury as a result of
its enforcement. 8 Respondent cannot see such interest as being possessed
by petitioners. It may indicate the clarity of vision being dimmed,
considering that one of the petitioners was a candidate for an elective
position. Even if such were the case, however, the objection is not
necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed
to allow a taxpayer to bring an action to restrain the expenditure of public
funds through the enforcement of an invalid or unconstitutional
legislative measure. 9
2. In the answer of the respondent as well as its memorandum, stress was
laid on Republic Act No. 4880 as an exercise of the police power of the
state, designed to insure a free, orderly and honest election by regulating
"conduct which Congress has determined harmful if unstrained and
carried for a long period before elections it necessarily entails huge
expenditures of funds on the part of the candidates, precipitates violence
and even deaths, results in the corruption of the electorate, and inflicts
direful consequences upon public interest as the vital affairs of the
country are sacrificed to purely partisan pursuits." Evidently for
respondent that would suffice to meet the constitutional questions raised
as to the alleged infringement of free speech, free press, freedom of
assembly and 'freedom' of association. Would it were as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes
though against such a cavalier approach. "The case confronts us again
with the duty our system places on this Court to say where the
individual's, freedom ends the State's power begins. Choice on that
border, now as always delicate, is perhaps more so where the usual.
presumption supporting legislation is balanced by the preferred place
given in our scheme to the great, the indispensable democratic freedoms
secured by the First Amendment.... That priority gives these liberties a
sanctity and a sanction not permitting dubious intrusions. And it is the
character of the right, not of the limitation, which determines what
standard governs the choice..."
Even a leading American State court decision on a regulatory measure
dealing with elections, cited in the answer of respondent, militates against
a stand minimizing the importance and significance of the alleged
violation of individual rights: "As so construed by us, it has not been
made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev.
Gen. St., is on its face violative of any provision of either the state or
Federal Constitution on the subject of free speech or liberty of the press,
nor that its operation is in any wise subversive of any one's constitutional
liberty." 11 Another leading State decision is much more emphatic: "Broad
as the power of the legislature is with respect to regulation of elections,
that power is not wholly without limitation. Under the guise of regulating
elections, the legislature may not deprive a citizen of the right of trial by
jury. A person charged with its violation may not be compelled to give
evidence against himself. If it destroys the right of free speech, it is to
that extent void." 12
The question then of the alleged violation of Constitutional rights must be
squarely met.lawphi1.nt
3. Now as to the merits. A brief resume of the basic rights on which
petitioners premise their stand that the act is unconstitutional may prove
illuminating. The primacy, the high estate accorded freedom of
expression is of course a fundamental postulate of our constitutional
system. No law shall be passed abridging the freedom of speech or of the
press .... 13 What does it embrace? At the very least, free speech and free
press may be identified with the liberty to discuss publicly and truthfully
The Cabansag case likewise referred to the other test, the "dangerous
tendency" rule and explained it thus: "If the words uttered create a
dangerous tendency which the state has a right to prevent, then such
words are punishable. It is not necessary that some definite or immediate
acts of force, violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of force,
violence, or unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the substantive evil
which the legislative body seeks to prevent.
grievances. All these rights while not identical are inseparable. They are
cognate rights and the assurance afforded by the clause of this section of
the Bill of Rights wherein they are contained, applies to all. As
emphatically put in the leading case of United States v.
Cruikshank, 32 "the very idea of a government, republican in form, implies
a right on the part of its citizens to meet peaceably for consultation in
respect to public affairs and to petition for redress of grievances." As in
the case of freedom of expression, this right is not to be limited, much
less denied, except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient
danger to a fair administration of justice? Did its remittance to the PCAC
create a danger sufficiently imminent to come under the two rules
mentioned above?" The choice of this Court was manifest and
indisputable. It adopted the clear and present danger test. As a matter of
fact, in an earlier decision, Primicias v. Fugoso, 25 there was likewise an
implicit acceptance of the clear and present danger doctrine.
and present danger that calls for measures that may bear heavily on the
exercise of the cherished rights of expression, of assembly, and of
association.
This is not to say, that once such a situation is found to exist there is no
limit to the allowable limitations on such constitutional rights. The clear
and present danger doctrine rightly viewed requires that not only should
there be an occasion for the imposition of such restrictions but also that
they be limited in scope.
There are still constitutional questions of a serious character then to be
faced. The practices which the act identifies with "election campaign" or
"partisan political activity" must be such that they are free from the taint
of being violative of free speech, free press, freedom of assembly, and
freedom of association. What removes the sting from constitutional
objection of vagueness is the enumeration of the acts deemed included in
the terms "election campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or
candidate; (b) holding political conventions, caucuses, conferences,
meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or
against a candidate or party;(c) making speeches, announcements or
commentaries or holding interviews for or against the election or any
party or candidate for public office; (d) publishing or distributing
campaign literature or materials; (e) directly or indirectly soliciting votes
and/or undertaking any campaign or propaganda for or against any party;
(f) giving, soliciting, or receiving contributions for election campaign
purposes, either directly or indirectly." 45 As thus limited the objection
that may be raised as to vagueness has been minimized, if not totally set
at rest. 46
8. This Court, with the aforementioned five Justices unable to agree, is of
the view that no unconstitutional infringement exists insofar as the
formation of organization, associations, clubs, committees, or other
groups of persons for the purpose of soliciting votes or undertaking any
campaign or propaganda or both for or against a candidate or party is
restricted 47 and that the prohibition against giving, soliciting, or receiving
contribution for election purposes, either directly or indirectly, is equally
free from constitutional infirmity. 48
The restriction on freedom of assembly as confined to holding political
conventions, caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes or undertaking any
campaign or propaganda or both for or against a candidate or
party, 49 leaving untouched all other legitimate exercise of such poses a
more difficult question. Nevertheless, after a thorough consideration, and
with the same Justices entertaining the opposite conviction, we reject the
contention that it should be annulled. Candor compels the admission that
the writer of this opinion suffers from the gravest doubts. For him, such
statutory prescription could very well be within the outermost limits of
validity, beyond which lies the abyss of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or
"partisan political activity" tax to the utmost the judicial predisposition to
view with sympathy legislative efforts to regulate election practices
deemed inimical, because of their collision with the preferred right of
freedom of expression. From the outset, such provisions did occasion
divergence of views among the members of the Court. Originally only a
minority was for their being adjudged as invalid. It is not so. any
more. 50 This is merely to emphasize that the scope of the curtailment to
which freedom of expression may be subjected is not foreclosed by the
recognition of the existence of a clear and present danger of a substantive
evil, the debasement of the electoral process.
The majority of the Court is thus of the belief that the solicitation or
undertaking of any campaign or propaganda whether directly or
indirectly, by an individual, 51 the making of speeches, announcements or
commentaries or holding interview for or against the election for any
party or candidate for public office, 52 or the publication or distribution of
campaign literature or materials, 53 suffer from the corrosion of invalidity.
It lacks however one more affirmative vote to call for a declaration of
unconstitutionality.
This is not to deny that Congress was indeed called upon to seek remedial
measures for the far-from-satisfactory condition arising from the tooearly nomination of candidates and the necessarily prolonged, political
campaigns. The direful consequences and the harmful effects on the
public interest with the vital affairs of the country sacrificed many a time
to purely partisan pursuits were known to all. Moreover, it is no
exaggeration to state that violence and even death did frequently occur
because of the heat engendered by such political activities. Then, too, the
opportunity for dishonesty and corruption, with the right to suffrage
being bartered, was further magnified.
Under the police power then, with its concern for the general welfare and
with the commendable aim of safe-guarding the right of suffrage, the
legislative body must have felt impelled to impose the foregoing
restrictions. It is understandable for Congress to believe that without the
limitations thus set forth in the challenged legislation, the laudable
purpose of Republic Act No. 4880 would be frustrated and nullified.
Whatever persuasive force such approach may command failed to elicit
the assent of a majority of the Court. This is not to say that the conclusion
reached by the minority that the above poisons of the statute now assailed
has passed the constitutional test is devoid of merit.
It only indicates that for the majority, the prohibition of any speeches,
announcements or commentaries, or the holding of interviews for or
against the election of any party or candidate for public office and the
prohibition of the publication or distribution of campaign literature or
materials, against the solicitation of votes whether directly or indirectly,
or the undertaking of any campaign literature or propaganda for or
against any candidate or party is repugnant to a constitutional command.
To that extent, the challenged statute prohibits what under the
Constitution cannot by any law be abridged.
More specifically, in terms of the permissible scope of legislation that
otherwise could be justified under the clear and present danger doctrine,
it is the consideration opinion of the majority, though lacking the
necessary vote for an adjudication of invalidity, that the challenged
statute could have been more narrowly drawn and the practices prohibited
more precisely delineated to satisfy the constitutional requirements as to a
valid limitation under the clear and present danger doctrine.
In a 1968 opinion, the American Supreme Court made clear that the
absence of such reasonable and definite standards in a legislation of its
character is fatal. 54 Where, as in the case of the above paragraphs, the
majority of the Court could discern "an over breadth that makes possible
oppressive or capricious application" 55 of the statutory provisions, the
line dividing the valid from the constitutionally infirm has been crossed.
Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its ViceChairman, also named respondents.
In a resolution of a sub-committee of respondent Board of October 23,
1984, a permit to exhibit the film Kapit sa Patalim under the
classification "For Adults Only," with certain changes and deletions
enumerated was granted. A motion for reconsideration was filed by
petitioners stating that the classification of the film "For Adults Only"
was without basis. 4 Then on November 12, 1984, respondent Board
released its decision: "Acting on the applicant's Motion for
Reconsideration dated 29 October 1984, the Board, after a review of the
resolution of the sub-committee and an examination of the film, Resolves
to affirm in toto the ruling of the sub-committee. Considering, however,
certain vital deficiencies in the application, the Board further Resolves to
direct the Chairman of the Board to Withheld the issuance of the Permit
to exhibit until these deficiencies are supplied. 5 Hence this petition.
This Court, in a resolution of January 12, 1985, required respondent to
answer. In such pleading submitted on January 21, 1985, as one of its
special and affirmative defenses, it was alleged that the petition is moot
as "respondent Board has revoked its questioned resolution, replacing it
with one immediately granting petitioner company a permit to exhibit the
film Kapit without any deletion or cut [thus an] adjudication of the
questions presented above would be academic on the case." 6 Further:
"The modified resolution of the Board, of course, classifies Kapit as foradults-only, but the petition does not raise any issue as to the validity of
this classification. All that petitioners assail as arbitrary on the part of the
Board's action are the deletions ordered in the film. 7 The prayer was for
the dismissal of the petition.
An amended petition was then filed on January 25, 1985. The main
objection was the classification of the film as "For Adults Only." For
petitioners, such classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic expression. The film is an
integral whole and all its portions, including those to which the Board
now offers belated objection, are essential for the integrity of the film.
Viewed as a whole, there is no basis even for the vague speculations
advanced by the Board as basis for its classification. 8 There was an
answer to the amended petition filed on February 18, 1985. It was therein
asserted that the issue presented as to the previous deletions ordered by
the Board as well as the statutory provisions for review of films and as to
the requirement to submit the master negative have been all rendered
moot. It was also submitted that the standard of the law for classifying
films afford a practical and determinative yardstick for the exercise of
judgment. For respondents, the question of the sufficiency of the
standards remains the only question at issue.
It would be unduly restrictive under the circumstances to limit the issue
to one of the sufficiency of standards to guide respondent Board in the
exercise of its power. Even if such were the case, there is justification for
an inquiry into the controlling standard to warrant the classification of
"For Adults Only." This is especially so, when obscenity is the basis for
any alleged invasion of the right to the freedom of artistic and literary
expression embraced in the free speech and free press guarantees of the
Constitution.
1. Motion pictures are important both as a medium for the
communication of Ideas and the expression of the artistic impulse. Their
effects on the perception by our people of issues and public officials or
public figures as well as the prevailing cultural traits is considerable. Nor
as pointed out in Burstyn v. Wilson 9 is the "importance of motion pictures
as an organ of public opinion lessened by the fact that they are designed
to entertain as well as to inform. 10 There is no clear dividing line between
what involves knowledge and what affords pleasure. If such a distinction
were sustained, there is a diminution of the basic right to free expression.
Our recent decision in Reyes v. Bagatsing 11 cautions against such a move.
Press freedom, as stated in the opinion of the Court, "may be Identified
with the liberty to discuss publicly and truthfully any matter of public
concern without censorship or punishment. 12 This is not to say that such
freedom, as is the freedom of speech, absolute. It can be limited if "there
be a 'clear and present danger of a substantive evil that [the State] has a
right to prevent. 13
2. Censorship or previous restraint certainly is not all there is to free
speech or free press. If it were so, then such basic rights are emasculated.
It is however, except in exceptional circumstances a sine qua non for the
meaningful exercise of such right. This is not to deny that equally basic is
the other important aspect of freedom from liability. Nonetheless, for the
purposes of this litigation, the emphasis should rightly be on freedom
from censorship. It is, beyond question, a well-settled principle in our
jurisdiction. As early as 1909, in the case of United States v. Sedano, 14 a
prosecution for libel, the Supreme Court of the Philippines already made
clear that freedom of the press consists in the right to print what one
chooses without any previous license. There is reaffirmation of such a
view in Mutuc v. Commission on Elections, 15 where an order of
respondent Commission on Elections giving due course to the certificate
of candidacy of petitioner but prohibiting him from using jingles in his
mobile units equipped with sound systems and loud speakers was
considered an abridgment of the right of the freedom of expression
amounting as it does to censorship. It is the opinion of this Court,
therefore, that to avoid an unconstitutional taint on its creation, the power
of respondent Board is limited to the classification of films. It can, to
safeguard other constitutional objections, determine what motion pictures
are for general patronage and what may require either parental guidance
or be limited to adults only. That is to abide by the principle that freedom
of expression is the rule and restrictions the exemption. The power to
exercise prior restraint is not to be presumed, rather the presumption is
against its validity. 16
3. The test, to repeat, to determine whether freedom of excession may be
limited is the clear and present danger of an evil of a substantive
character that the State has a right to prevent. Such danger must not only
be clear but also present. There should be no doubt that what is feared
may be traced to the expression complained of. The causal connection
must be evident. Also, there must be reasonable apprehension about its
imminence. The time element cannot be ignored. Nor does it suffice if
such danger be only probable. There is the require of its being well-nigh
inevitable. The basic postulate, wherefore, as noted earlier, is that where
the movies, theatrical productions radio scripts, television programs, and
other such media of expression are concerned included as they are in
freedom of expression censorship, especially so if an entire production
is banned, is allowable only under the clearest proof of a clear and
present danger of a substantive evil to public public morals, public health
or any other legitimate public interest. 17 There is merit to the observation
of Justice Douglas that "every writer, actor, or producer, no matter what
medium of expression he may use, should be freed from the censor. 18
4. The law, however, frowns on obscenity and rightly so. As categorically
stated by Justice Brennan in Roth v. United States 19 speaking of the free
speech and press guarantee of the United States Constitution: "All Ideas
having even the slightest redeeming social importance unorthodox
Ideas, controversial Ideas, even Ideas hateful to the prevailing climate of
opinion have the full protection of the guaranties, unless excludable
because they encroach upon the limited area of the First Amendment is
the rejection of obscenity as utterly without redeeming social
importance. 20 Such a view commends itself for approval.
5. There is, however, some difficulty in determining what is obscene.
There is persuasiveness to the approach followed in Roth: "The early
leading standard of obscenity allowed material to be judged merely by
the effect of an isolated excerpt upon particularly susceptible
persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts
adopted this standard but later decisions have rejected it and substituted
this test: whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a
whole appeals to prurient interest. The Hicklin test, judging obscenity by
the effect of isolated passages upon the most susceptible persons, might
well encompass material legitimately treating with sex, and so it must be
rejected as unconstitutionally restrictive of the freedoms of speech and
press. On the other hand, the substituted standard provides safeguards
adequate to withstand the charge of constitutional infirmity. 21
6. The above excerpt which imposes on the judiciary the duty to be ever
on guard against any impermissible infringement on the freedom of
artistic expression calls to mind the landmark ponencia of Justice
Malcolm in United States v. Bustos, 22 decided in 1918. While
recognizing the principle that libel is beyond the pale of constitutional
protection, it left no doubt that in determining what constitutes such an
offense, a court should ever be mindful that no violation of the right to
freedom of expression is allowable. It is a matter of pride for the
Philippines that it was not until 1984 in New York Timer v.
Sullivan, 23 thirty-years later, that the United States Supreme Court
enunciated a similar doctrine.
7. It is quite understandable then why in the Roth opinion, Justice
Brennan took pains to emphasize that "sex and obscenity are not
synonymous. 24 Further: "Obscene material is material which deals with
sex in a manner appealing to prurient interest. The portrayal of sex, e.g.,
in art, literature and scientific works, is not itself sufficient reason to deny
material the constitutional protection of freedom of speech and press.
Sex, a great and mysterious motive force in human life has indisputably
been a subject of absorbing interest to mankind through the ages; it is one
of the vital problems of human interest and public concern. 25
8. In the applicable law, Executive Order No. 876, reference was made to
respondent Board "applying contemporary Filipino cultural values as
standard, 26 words which can be construed in an analogous manner.
Moreover, as far as the question of sex and obscenity are concerned, it
cannot be stressed strongly that the arts and letters "shall be under the
patronage of the State. 27 That is a constitutional mandate. It will be less
than true to its function if any government office or agency would invade
the sphere of autonomy that an artist enjoys. There is no orthodoxy in
what passes for beauty or for reality. It is for the artist to determine what
for him is a true representation. It is not to be forgotten that art
and belleslettres deal primarily with imagination, not so much with ideas
in a strict sense. What is seen or perceived by an artist is entitled to
respect, unless there is a showing that the product of his talent rightfully
may be considered obscene. As so wen put by Justice Frankfurter in a
concurring opinion, "the widest scope of freedom is to be given to the
adventurous and imaginative exercise of the human spirit" 28 in this
sensitive area of a man's personality. On the question of obscenity,
therefore, and in the light of the facts of this case, such standard set forth
in Executive Order No. 878 is to be construed in such a fashion to avoid
any taint of unconstitutionality. To repeat, what was stated in a recent
decision 29 citing the language of Justice Malcolm in Yu Cong Eng v.
... [F]reedom to differ is not limited to things that do not matter much.
That would be a mere shadow of freedom. The test of its substance is the
right to differ as to things that touch the heart of the existing order.
Since ancient times, society has grappled with deep disagreements about
the definitions and demands of morality. In many cases, where moral
convictions are concerned, harmony among those theoretically opposed is
an insurmountable goal. Yet herein lies the paradox philosophical
justifications about what is moral are indispensable and yet at the same
time powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates;
accommodation is better than intransigence; reason more worthy than
rhetoric. This will allow persons of diverse viewpoints to live together, if
not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with
an application for a writ of preliminary mandatory injunction, filed by
Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the
Commission on Elections (COMELEC) dated November 11, 2009[2] (the
First Assailed Resolution) and December 16, 2009[3] (the Second
Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELECs refusal to
accredit Ang Ladlad as a party-list organization under Republic Act (RA)
No. 7941, otherwise known as the Party-List System Act.[4]
Ang Ladlad is an organization composed of men and women who
identify themselves as lesbians, gays, bisexuals, or trans-gendered
individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006.
The application for
accreditation was denied on the ground that the organization had no
substantial membership base. On August 17, 2009, Ang Ladlad again
filed a Petition[5] for registration with the COMELEC.
For this cause God gave them up into vile affections, for even
their women did change the natural use into that which is against nature:
And likewise also the men, leaving the natural use of the woman, burned
in their lust one toward another; men with men working that which is
unseemly, and receiving in themselves that recompense of their error
which was meet.
the teachings of our faith. Lehman Strauss, a famous bible teacher and
writer in the U.S.A. said in one article that older practicing homosexuals
are a threat to the youth. As an agency of the government, ours too is the
States avowed duty under Section 13, Article II of the Constitution to
protect our youth from moral and spiritual degradation.[8]
When Ang Ladlad sought reconsideration,[9] three commissioners voted
to overturn the First Assailed Resolution (Commissioners Gregorio Y.
Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlads Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for
the majority in his Separate Opinion, upheld the First Assailed
Resolution, stating that:
I.
No substantial differentiation
Legal Provisions
But above morality and social norms, they have become part of the law
of the land. Article 201 of the Revised Penal Code imposes the penalty of
prision mayor upon Those who shall publicly expound or proclaim
doctrines openly contrary to public morals. It penalizes immoral
doctrines, obscene publications and exhibition and indecent shows.
Ang Ladlad apparently falls under these legal provisions. This is clear
from its Petitions paragraph 6F: Consensual partnerships or
relationships by gays and lesbians who are already of age It is further
indicated in par. 24 of the Petition which waves for the record: In 2007,
Men Having Sex with Men or MSMs in the Philippines were estimated as
670,000. Moreoever, Article 694 of the Civil Code defines nuisance as
any act, omission x x x or anything else x x x which shocks, defies or
disregards decency or morality x x x. These are all unlawful.[10]
On January 4, 2010, Ang Ladlad filed this Petition, praying that the
Court annul the Assailed Resolutions and direct the COMELEC to grant
Ang Ladlads application for accreditation. Ang Ladlad also sought the
issuance ex parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would begin
printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General
(OSG) to file its Comment on behalf of COMELEC not later than 12:00
noon of January 11, 2010.[11] Instead of filing a Comment, however, the
OSG filed a Motion for Extension, requesting that it be given until
January 16, 2010 to Comment.[12] Somewhat surprisingly, the OSG
later filed a Comment in support of petitioners application.[13] Thus, in
order to give COMELEC the opportunity to fully ventilate its position,
we required it to file its own comment.[14] The COMELEC, through its
Law Department, filed its Comment on February 2, 2010.[15]
In the meantime, due to the urgency of the petition, we issued a
temporary restraining order on January 12, 2010, effective immediately
and continuing until further orders from this Court, directing the
COMELEC to cease and desist from implementing the Assailed
Resolutions.[16]
Also, on January 13, 2010, the Commission on Human Rights (CHR)
filed a Motion to Intervene or to Appear as Amicus Curiae, attaching
thereto its Comment-in-Intervention.[17] The CHR opined that the
denial of Ang Ladlads petition on moral grounds violated the standards
and principles of the Constitution, the Universal Declaration of Human
Rights (UDHR), and the International Covenant on Civil and Political
Our Ruling
We grant the petition.Compliance with the Requirements of the
Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the
ground that the LGBT sector is neither enumerated in the Constitution
and RA 7941, nor is it associated with or related to any of the sectors in
the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani
stands for the proposition that only those sectors specifically enumerated
in the law or related to said sectors (labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals) may be registered under
the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections,[20] the enumeration of
marginalized and under-represented sectors is not exclusive. The crucial
element is not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the
Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful
statements in its petition when it alleged that it had nationwide existence
Norte
ONE BACARDI
PUP LAKAN
RADAR PRIDEWEAR
Circle of Friends
Since the COMELEC only searched for the names ANG LADLAD
LGBT or LADLAD LGBT, it is no surprise that they found that petitioner
had no presence in any of these regions. In fact, if COMELECs findings
are to be believed, petitioner does not even exist in Quezon City, which is
registered as Ang Ladlads principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently
demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELECs moral objection and the
belated allegation of non-existence, nowhere in the records has the
respondent ever found/ruled that Ang Ladlad is not qualified to register as
a party-list organization under any of the requisites under RA 7941 or the
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution,
which provides nor shall any person be denied equal protection of the
laws, courts have never interpreted the provision as an absolute
prohibition on classification. Equality, said Aristotle, consists in the
same treatment of similar persons.[33] The equal protection clause
guarantees that no person or class of persons shall be deprived of the
same protection of laws which is enjoyed by other persons or other
classes in the same place and in like circumstances.[34]
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some legitimate
government end.[35] In Central Bank Employees Association, Inc. v.
Banko Sentral ng Pilipinas,[36] we declared that [i]n our jurisdiction,
the standard of analysis of equal protection challenges x x x have
followed the rational basis test, coupled with a deferential attitude to
legislative classifications and a reluctance to invalidate a law unless there
is a showing of a clear and unequivocal breach of the Constitution.[37]
majority, however large but for each of us" the majority imposes upon
itself a self-denying ordinance. It promises not to do what it otherwise
could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate
aim pursued. Absent any compelling state interest, it is not for the
COMELEC or this Court to impose its views on the populace. Otherwise
stated, the COMELEC is certainly not free to interfere with speech for no
better reason than promoting an approved message or discouraging a
disfavored one.
This position gains even more force if one considers that homosexual
conduct is not illegal in this country. It follows that both expressions
concerning ones homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public
morality does not justify criminalizing same-sex conduct.[41] European
and United Nations judicial decisions have ruled in favor of gay rights
claimants on both privacy and equality grounds, citing general privacy
and equal protection provisions in foreign and international texts.[42] To
the extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally binding on
Philippine courts, may nevertheless have persuasive influence on the
Courts analysis.
In the area of freedom of expression, for instance, United States courts
have ruled that existing free speech doctrines protect gay and lesbian
rights to expressive conduct. In order to justify the prohibition of a
particular expression of opinion, public institutions must show that their
actions were caused by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular
viewpoint.[43]
With respect to freedom of association for the advancement of ideas and
beliefs, in Europe, with its vibrant human rights tradition, the European
Court of Human Rights (ECHR) has repeatedly stated that a political
party may campaign for a change in the law or the constitutional
structures of a state if it uses legal and democratic means and the changes
it proposes are consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order and
whose realization is advocated by peaceful means must be afforded a
proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.[44] A political group should
not be hindered solely because it seeks to publicly debate controversial
political issues in order to find solutions capable of satisfying everyone
concerned.[45] Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside the
protection of the freedom of association guarantee.[46]
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant. They are
entitled to hold and express that view. On the other hand, LGBTs and
their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent
dynamically in its attempt to bring about a more just and humane world
order. For individuals and groups struggling with inadequate structural
and governmental support, international human rights norms are
particularly significant, and should be effectively enforced in domestic
legal systems so that such norms may become actual, rather than ideal,
standards of conduct.
Our Decision today is fully in accord with our international obligations
to protect and promote human rights. In particular, we explicitly
recognize the principle of non-discrimination as it relates to the right to
electoral participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the
ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of
general application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article
26 of the ICCPR, the ICCPR Human Rights Committee has opined that
the reference to sex in Article 26 should be construed to include
sexual orientation.[48] Additionally, a variety of United Nations
bodies have declared discrimination on the basis of sexual orientation to
be prohibited under various international agreements.[49]
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his
country.
As stated by the CHR in its Comment-in-Intervention, the scope of the
right to electoral participation is elaborated by the Human Rights
As a final note, we cannot help but observe that the social issues
presented by this case are emotionally charged, societal attitudes are in
flux, even the psychiatric and religious communities are divided in
opinion. This Courts role is not to impose its own view of acceptable
behavior. Rather, it is to apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the knowledge that our
democracy is resilient enough to withstand vigorous debate.