EUGENIO LOPEZ, publisher and owner of the "MANILA, CHRONICLE and JUAN T.

GATBONTON,
petitioners,
vs.
THE HON. COURT OF APPEALS and FIDEL G. CRUZ, respondents.
Salonga, Ordoez, Sicat & Associates for petitioners.
FERNANDO, J.:
There is an element of novelty in this appeal by certiorari from a decision of respondent Court of
Appeals holding petitioners, the then publisher and editor of This Week Magazine, liable in damages
to the tune of eleven thousand pesos arising from the publication of a picture of respondent, Fidel G.
Cruz, as being responsible for the hoax of the year. The absence of any connection either fanciful or
remote with such event is admitted. The view is pressed by petitioners, invoking a liberal construction
of the implications of press freedom, owning up to the mistake, unfortunately not discovered until it
was too late, and publishing a correction as an earnest of its good faith, that they should not be made
to pay at all. This Court, without discounting the elements of plausibility of their contention, cannot,
however, close its eyes to the injury inflicted on respondent and indulge them in such a plea. It is not
disposed though to affirm respondent Court's decision in its entirety. Considering all the
circumstances, the damages awarded to private respondent appear to be far too generous. A
reduction is in order. The sum of one thousand pesos would be enough. So we decide.
The antecedents of the case follow: In the early part of January, 1956, there appeared on the front
page of The Manila Chronicle, of which petitioner Eugenio Lopez was the publisher, as well as on
other dailies, a news story of a sanitary inspector assigned to the Babuyan Islands, Fidel Cruz by
name, sending a distress signal to a passing United States Airforce plane which in turn relayed the
message to Manila. He was not ignored, an American Army plane dropping on the beach of an island
an emergency-sustenance kit containing, among other things, a two-way radio set. He utilized it to
inform authorities in Manila that the people in the place were living in terror, due to a series of killings
committed since Christmas of 1955. Losing no time, the Philippines defense establishment rushed to
the island a platoon of scout rangers led by Major Wilfredo Encarnacion. Upon arriving at the reported
killer-menaced Babuyan Claro, however, Major Encarnacion and his men found, instead of the alleged
killers, a man, the same Fidel Cruz, who merely wanted transportation home to Manila. In view of this
finding, Major Wilfredo Encarnacion branded as a "hoax," to use his own descriptive word, the report
of Fidel Cruz. That was the term employed by the other newspapers when referring to the abovementioned incident.
This Week Magazine of the Manila Chronicle, then edited by petitioner Juan T. Gatbonton, devoted a
pictorial article to it in its issue of January 15, 1956. Mention was made that while Fidel Cruz story
turned out to be false if brought to light the misery of the people living in that place, with almost
everybody sick, only two individuals able to read and write, food and clothing being scarce. Then in
the January 29, 1956 issue of This Week Magazine, the "January News Quiz" included an item on the
central figure in what was known as the Calayan Hoax, who nevertheless did the country a good turn
by calling the government's attention to that forsaken and desolate corner of the Republic. Earlier in
its Special Year End Quiz appearing in its issue of January 13, 1956, reference was made to a health
inspector who suddenly felt "lonely" in his isolated post, cooked up a story about a murderer running
loose on the island of Calayan so that he could be ferried back to civilization. He was given the
appellation of "Hoax of the Year."
The magazine on both occasions carried photographs of the person purporting to be Fidel Cruz.
Unfortunately, the pictures that were published on both occasions were that of private respondent
Fidel G. Cruz, a businessman contractor from Santa Maria, Bulacan. It turned out that the photographs
of respondent Cruz and that of Fidel Cruz, sanitary inspector, were on file in the library of the Manila
Chronicle in accordance with the standard procedure observed in other newspaper offices, but when
the news quiz format was prepared, the two photographs were in advertently switched.
As soon, however, as the inadvertent error was brought to the attention of petitioners, the following
correction was immediately published in This Week Magazine on January 27, 1957: "While we were
rushing to meet: the deadline for January 13th issue of This Week, we inadvertently published the
picture of former Mayor Fidel G. Cruz of Sta. Maria, Bulacan, businessman and contractor, in 'Our Own
Who's Who feature in the Year End Quiz' of This Week in lieu of the health inspector Fidel Cruz, who
was connected with a story about a murderer running loose on Calayan Island. We here express our
profound regrets that such an error occurred." Together with the foregoing correction, petitioners
published the picture of Fidel Cruz; the photographs and the correction moreover were enclosed by
four lines the type used was bolder than ordinary, and the item was placed in a conspicuous place in
order to call the attention of the readers to such amends being made. 1

Respondent Fidel G. Cruz sued petitioners in the Court of First Instance of Manila for the recovery of
damages alleging the defamatory character of the above publication of his picture. After trial duly
had, he was awarded five thousand pesos as actual damages, another five thousand pesos as moral
damages, and one thousand pesos for attorney's fees. That judgment was affirmed on appeal to
respondent Court. Hence, this petition for certiorari with the result, as already announced at the
opening of this opinion, that while respondent Cruz is entitled to Prevail, the damages awarded him
should be reduced.
1. It is on the freedom of the press that petitioners would stake their case to demonstrate that no
action for libel would lie arising from the publication of the picture of respondent Cruz identified as
responsible for the hoax of the year, when such was not the case at all. It is easily understandable
why. No liability would be incurred if it could be demonstrated that it comes within the well-nigh all
embracing scope of freedom of the press. Included therein is the widest latitude of choice as to what
items should see the light of day so long as they are relevant to a matter of public interest, the
insistence on the requirement as to its truth yielding at times to unavoidable inaccuracies attendant
on newspapers and other publications being subject to the tyranny of deadlines. If no such showing
could be plausibly made, however, it is difficult to resist the conclusion that there was in fact the
commission of such quasi-delict. It was held in Lu Chu Sing v. Lu Tiong Gui, 2 that "the repeal of the
old Libel Law (Act No. 277) did not abolish the civil action for libel." 3 A libel was defined in that Act as
a "malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, ...,
tending to blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation,
or publish the alleged or natural defects of one who is alive, and thereby "pose him to public hatred,
contempt, or ridicule," 4 There was an express provision in such legislation for a tort or a quasi-delict
action arising from libel. 5 There is reinforcement to such a view in the new Civil Code providing for
the recovery of moral damages for libel, slander or any other form of defamation. 6
There has been no time then in our judicial history when civil actions for libel did not form a staple
part of litigations which had reached this Court. 7 Such is the case in a far greater measure in the
United States. According to the standard treatise of Newell on Slander and Libel: "Publication of a
person's photograph in connection with an article libelous of a third person, is a libel on the person
whose picture is published, where the acts set out in the article are imputed to such person." 8 In
support of the above statement, he made reference to several cases. 9 Other decisions to the same
effect have been promulgated since the fourth edition of Newell published in 1924. 1 0 Why libel law
has both a criminal and a civil aspect is explained by Hale in his Law of the Press thus: "On the one
hand, libeling a person results in depriving him of his good reputation. Since reputation is a thing of
value, truly rather to be chosen than great riches , an impairment of it is a personal wrong. To redress
this personal wrong money damages are awarded to the injured person. On the other hand, the
publication of defamatory statements tends strongly to induce breach of the peace by the person
defamed, and hence is of peculiar moment to the state as the guardian of the public peace. Viewed
from this angle, libel is a crime, and as such subjects the offender to a fine or imprisonment." 1 1
The first decision cited by Newell is a decision of Justice Holmes. The case is Peck v. Tribune Co. 1 2
Plaintiff there complained of her picture being published in an advertisement in defendant's
newspaper. The Chicago Sunday Tribune, with certain words of commendation for a brand of liquor
attributed to her when in fact she did not make such a statement at all and could not have made it,
as she was a total abstainer. The defendant was held liable, for as Justice Holmes pointed out: "There
was some suggestion that the defendant published the portrait by mistake, and without knowledge
that it was the plaintiff's portrait, or was not what it purported to be. But the fact, if it was one, was
no excuse. If the publication was libelous, the defendant took the risk. As was said of such matters by
Lord Mansfield, 'Whenever a man publishes, he publishes at his peril.' ... The reason is plain. A libel is
harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an
individual, without other justification than exists for an advertisement or a piece of news, the usual
principles of tort will make him liable if the statements are false, or are true only of someone else." 1
3
Learned Hand, in holding that an action for libel would lie arising from a publication in an
advertisement of plaintiff's photograph yielding a "grotesque monstrous and obscene impression" and
that he was "substantially enough ridiculed" to complain reached the conclusion "that because the
picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it
was prima facie actionable; that the fact that it did not assume to state a fact or an opinion is
irrelevant; and that in consequence the publication is actionable." 1 4 It is likewise an accepted fact
that such publications do occasion greater injury to reputation than would mere words alone. Cardozo
so aptly put the matter thus: "'It has its genesis in evils which the years have not erased. Many things
that are defamatory may be said with impunity through the medium of speech. Not so, however,
when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is
its permanence of form. The spoken word dissolves, but the written one abide and Perpetuates the
scandal.' ... When one speaks of a writing in this connection, one does not limit oneself to writings in
manuscripts or books. Any symbol suffices Pictures, hieroglyphics shorthand notes if only what is
written is intelligible to him who reads." 1 5

2. That is only one side of the picture, however. There is an impressive recognition in our decisions of
the curtailment to which press freedom would be subjected if an action for libel were not rigorously
scrutinized to remove doubts as to its being utilized to penalize the exercise of that constitutional
right Thus, in the first leading case, United States v. Bustos, 1 6 Justice Malcolm could correctly stress:
"The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and an unjust accusation: the wound can be assuaged with the balm of a clear
conscience. A public officer must not to be too thin-skinned with reference to comment upon his
official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course,
criticism does not authorize defamation. Nevertheless, as an individual is less than the State, so must
expected criticism be born for the common good." 1 7 On this aspect of the question which, as
answered by him, would require that a criminal suit for libel should not be utilized as a means for
stifling press freedom, he categorically declared: "Public policy, the welfare of society, and the orderly
administration of government have demanded protection for public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of privilege." 1 8
In another civil action for libel, such a thought is expressed differently in this wise: "So long as it is
done in good faith, newspapers have the legal right to have and express opinions on legal questions.
To deny them that right would infringe upon the freedom of the press." 1 9 The last word on the
subject, up to now at least, came from Quisumbing v. Lopez. 2 0 In the language of the then Chief
Justice Paras, who penned the opinion: "The Court of Appeals found as a fact that "there is no
evidence in the record to prove that the publication of the news item under Consideration was
prompted by personal ill will or spite, or that there was intention to do harm,' and that on the other
hand there was 'an honest and high sense of duty to serve the best interests of the public, without
self-seeking motive and with malice towards none.' Every citizen of course has the right to enjoy a
good name and reputation, but we do not consider that the respondents, under the circumstances of
this case, had violated said right or abused the freedom of the press. The newspapers should be
given such leeway and tolerance as to enable them to courageously and effectively perform their
important role in our democracy. In the preparation of stories, press reporters and edition usually
have to race with their deadlines; and consistently with good faith and reasonable care, they should
not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of
words." 2 1
It was not until 1964 that the United States Supreme Court had occasion to speak its mind on the
subject. In the leading case of New York Times Co. v. Sulivan, 2 2 the nature of the question presented
was set forth by Justice Brennan for the Court in the opening paragraph of his opinion: "We are
required in this case to determine for the first time the extent to which the constitutional protections
for speech and press limit a State's power to award damages in a libel action brought by a public
official against critics of his official conduct." 2 3 This is the Court's approach to such an issue: "In
deciding the question now, we are compelled by neither precedent nor Policy to give any more weight
to the epithet 'libel' than we have to other 'mere labels' of state law. ... Like insurrection, contempt,
advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the
various other formulae for the repression of expression that have been challenged in this Court, libel
can claim no talismanic immunity from constitutional limitations. It must be measured by standards
that satisfy the First Amendment." 2 4 Continuing the same trend, the opinion stressed further: "Thus
we consider this case against the background of a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ...
The present advertisement, as an expression of grievance and protest on one of the major public
issues of our time, would seem clearly to qualify for the constitutional protection." 2 5
For liability to arise then without offending press freedom, there is this test to meet: "The
constitutional guarantees require, we think, a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves that
the statement was made with 'actual malice' that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." 2 6 The United States Supreme Court went further
in Curtis Publishing Co. v. Butts, 2 7 where such immunity, was held as covering statements
concerning public figures regardless of whether or not they are government officials. Why there
should be such an extension is understandable in the light of the broad scope enjoyed by press
freedom which certainly allows a full and free discussion of public issues. What can be more logical
and appropriate, then, than such an expansion of the principle. As noted by a commentator: "Since
discussion of public issues cannot be meaningful without reference to the men involved on both sides
of such issues, and since such men will not necessarily be public officials, one cannot but agree that
the Court was right in Curtis to extend the Times rule to all public figures." 2 8
The significance of the foregoing line of decisions impressive for their consistency is quite obvious. No
inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise

could be characterized as libel whether in the form of printed words or a defamatory imputation
resulting from the publication of respondent's picture with the offensive caption as in the case here
complained of. This is not to deny that the party responsible invites the institution either of a criminal
prosecution or a civil suit. It must be admitted that what was done did invite such a dire consequence,
considering the value the law justly places on a man's reputation. This is merely to underscore the
primacy that freedom of the press enjoys. It ranks rather high in the hierarchy of legal values. If the
cases moan anything at all then, to emphasize what has so clearly emerged, they call for the utmost
care on the part of the judiciary to assure that in safeguarding the interest of the party allegedly
offended a realistic account of the obligation of a news media to disseminate information of a public
character and to comment thereon as well as the conditions attendant on the business of publishing
cannot be ignored. To single out one decision, Quisumbing v. Lopez so speaks in tones loud and clear.
3. It is to the haven thus afforded by such a highly sympathetic ruling to press freedom that
petitioners would seek refuge. The defamatory matter complained of in the Quisumbing case
appeared in the headline. It was without basis, as shown by the text of the news item itself.
Nonetheless, for the reasons expressed with vigor and clarity by former Chief Justice Paras, no liability
was deemed incurred by the then publisher of the Manila Chronicle A newspaper, it is stressed,
"should not be held to account to a point of suppression for honest mistakes or imperfection in the
choice of words." The above ruling, coupled with the requirement in the New York Times decision of
the United States Supreme Court, would for the writer of this opinion, furnish a sufficient basis for the
success of this appeal. The Court, however, is not inclined to view matters thus. Obviously
Quisumbing v. Lopez is not squarely in point. Here there was no pressure of a daily deadline to meet
no occasion to act with haste as the picture of respondent was published in a weekly magazine.
Moreover, there is the added requirement of reasonable care imposed by such decision which from
the facts here found, appeared not to be satisfied. It cannot be concluded then that the plea of
petitioners is sufficiently persuasive. The mandate of press freedom is not ignored, but here it does
not speak unequivocally. It is not decisive of the basic issue. By itself, it does not have a controlling
significance. So we hold.
4. Petitioners would make much, likewise, of their correction, which has all the force of a retraction, as
a basis from being absolved from any pecuniary responsibility. The present Chief Justice in Policarpio
v. Manila Times 2 9 restated the controlling principle: "We note that the news item published on
August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col.
Alba nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise,
indicated the number of sheets of stencil involved in said complaints. But, this rectification or
clarification does not wipe out the responsibility arising from the publication of the first article,
although it may and should mitigate it (Jimenez vs. Reyes, 27 Phil. 52)." 3 0
The correction promptly made by petitioners would thus call for a reduction in the damages awarded.
It should be noted that there was no proof of any actual pecuniary logs arising from the above
publication. It is worthwhile to recall what Justice Malcolm referred to as the tolerant attitude on the
part of appellate courts on this score, the usual practice being "more likely to reduce damages for
libel than to increase them." 3 1
WHEREFORE, the decision of respondent Court of Appeals of August 25, 1966 affirming the lower
court decision of March 22, 1958 is hereby modified, petitioners Eugenio Lopez and Juan T. Gatbonton
being ordered to pay jointly and severally the sum of P500.00 as moral damages and the additional
amount of P500.00 for attorney's fees. Costs against petitioners.
FORTUN VS. QUINSAYAS
Facts:
Petitioner Atty. Philip Sigfrid Fortun, the lead defense counsel of Ampatuan, Jr. in the prominent
"Maguindanao Massacre Case," filed this present petition for contempt against Atty. Prima
JesusaQuinsayas, et.al., including media men and broadcasting companies. Quinsayas, et.al. filed a
disbarment case against Fortun for dishonest and deceitful conduct violative of the Code of
Professional Responsibility. They alleged that Fortun is "engaging in activities misleading the
prosecution and the trial court." Pending the disbarment case, Quinsayas was invited to a show
"ANC Presents: Crying for Justice: the Maguindanao Massacre,"
where he discussed the disbarment case against Fortun, including its principal points. This tempted
Fortun to file this present petition against him and various media men and companies. Fortun alleged
that Quinsayas, et al. actively disseminated the details of the disbarment complaint against him in
violation of Rule 139-B of the Rules of Court on the
confidential nature of disbarment proceedings.
Petitioner further alleged that respondent media groups and personalities conspired with Quinsayas,
et al. by publishing the confidential materials on their respective media platforms. He said that the
public circulation of the disbarment complaint against him exposed this Court and its investigators to
outside influence and public interference. In their comments, respondents, among others, contended

that the filing of the disbarment complaint against petitioner was already the subject of widespread
news and already of public knowledge, and that petitioner is a public figure and the public has a
legitimate interest in his doings, affairs, and character.
Issue:
Whether or not respondents violated the confidentiality rule in disbarment proceedings, warranting a
finding of guilt for indirect contempt of court.
Held:
Quinsayas violated the confidentiality rule, but the media men and companies are not liable thereto.
The Court recognizes that publications which are privileged for reasons of public policy are protected
by the constitutional guaranty of freedom of speech. As a
general rule
, disbarment proceedings are confidential in nature until their final resolution and the final decision of
this Court. In this case, however, the filing of a disbarment complaint against petitioner is itself
a matter of public concern
considering that it arose from the Maguindanao Massacre case. The interest of the public is not on
petitioner himself but primarily on his involvement and participation as defense counsel in the case.
Indeed, the allegations in the disbarment complaint relate to petitioners supposed actions involving
the Maguindanao Massacre case.
Since petitioner is a public figure or has become a public figure because he is representing a matter
of public concern, and because the event itself that led to the filing of the disbarment case against
petitioner is a matter of public concern, the media has the right to report the filing of the disbarment
case as legitimate news.
It would have been different if the disbarment case against petitioner was about a private matter as
the media would then be bound to respect the confidentiality provision of disbarment proceedings
under Section 18, Rule 139-B of the Rules of Court. Said provision of the Rules of Court is not a
restriction on the freedom of the press. If there is a legitimate public interest, media is not prohibited
from making a fair, true, and accurate news report of a
6
Jurisprudence on Legal and Judicial EthicsFebruary2013
disbarment complaint. In the absence of a legitimate public interest in a disbarment complaint,
members of the media must preserve the confidentiality of disbarment proceedings during its
pendency. As to Quinsayas, he is bound by Section 18, Rule 139-B both as a complainant in the
disbarment case against petitioner and as a lawyer. As a lawyer and an officer of the Court, Quinsayas
is familiar with the confidential nature of disbarment proceedings. However, instead of preserving its
confidentiality, he disseminated copies of the disbarment complaint against petitioner to members of
the media which act constitutes contempt of court.
The premature disclosure by publication of the filing and pendency of disbarment proceedings is a
violation of the confidentiality rule
.The purpose of the rule is not only to enable this Court to make its investigations free from any
extraneous influence or interference, but also to protect the personal and professional reputation of
attorneys and judges from the baseless charges of disgruntled, vindictive, and irresponsible clients
and litigants. It is also to deter the press from publishing administrative cases or portions thereto
without authority. In view thereof, the court found Quinsayas liable for indirect contempt of court, with
a fine of P20,000.
ADIONG VS. COMELEC [207 SCRA 712; G.R. NO. 103956; 31 MAR 1992]
Sunday, February 08, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law
Facts: COMELEC promulgated Resolution No. 2347 which provides that decals and stickers may be
posted only in any of the authorized posting areas, prohibiting posting in "mobile" places, public or
private. Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails
the Resolution. In addition, the petitioner believes that with the ban on radio, television and print
political advertisements, he, being a neophyte in the field of politics stands to suffer grave and
irreparable injury with this prohibition.
Issue: Whether or Not the COMELECs prohibition unconstitutional.
Held: The prohibition unduly infringes on the citizen's fundamental right of free speech. The preferred
freedom of expression calls all the more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage. The socalled balancing of interests individual freedom on one hand and substantial public interests on the
other is made even more difficult in election campaign cases because the Constitution also gives
specific authority to the Commission on Elections to supervise the conduct of free, honest, and
orderly elections. When faced with border line situations where freedom to speak by a candidate or

party and freedom to know on the part of the electorate are invoked against actions intended for
maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of
freedom. The regulation of election campaign activity may not pass the test of validity if it is too
general in its terms or not limited in time and scope in its application, if it restricts one's expression of
belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media
reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally
sanctioned objective.
The posting of decals and stickers in mobile places like cars and other moving vehicles does not
endanger any substantial government interest. There is no clear public interest threatened by such
activity so as to justify the curtailment of the cherished citizen's right of free speech and expression.
Under the clear and present danger rule not only must the danger be patently clear and pressingly
present but the evil sought to be avoided must be so substantive as to justify a clamp over one's
mouth or a writing instrument to be stilled. The regulation strikes at the freedom of an individual to
express his preference and, by displaying it on his car, to convince others to agree with him. A sticker
may be furnished by a candidate but once the car owner agrees to have it placed on his private
vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody
else. The restriction as to where the decals and stickers should be posted is so broad that it
encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In
consequence of this prohibition, another cardinal rule prescribed by the Constitution would be
violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his
property without due process of law.
The prohibition on posting of decals and stickers on "mobile" places whether public or private except
in the authorized areas designated by the COMELEC becomes censorship.
NATIONAL PRESS CLUB VS. COMELEC [201 SCRA 1; G.R. NO. 1026653; 5 MAR 1992]
Sunday, February 08, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law
Facts: Petitioners in these cases consist of representatives of the mass media which are prevented
from selling or donating space and time for political advertisements; two (2) individuals who are
candidates for office (one for national and the other for provincial office) in the coming May 1992
elections; and taxpayers and voters who claim that their right to be informed of election Issue and of
credentials of the candidates is being curtailed. It is principally argued by petitioners that Section 11
(b) of Republic Act No. 66461 invades and violates the constitutional guarantees comprising freedom
of expression. Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to
censorship, because it selects and singles out for suppression and repression with criminal sanctions,
only publications of a particular content, namely, media-based election or political propaganda during
the election period of 1992. It is asserted that the prohibition is in derogation of media's role, function
and duty to provide adequate channels of public information and public opinion relevant to election
Issue. Further, petitioners contend that Section 11 (b) abridges the freedom of speech of candidates,
and that the suppression of media-based campaign or political propaganda except those appearing in
the Comelec space of the newspapers and on Comelec time of radio and television broadcasts, would
bring about a substantial reduction in the quantity or volume of information concerning candidates
and Issue in the election thereby curtailing and limiting the right of voters to information and opinion.

Issue: Whether or Not Section 11 (b) of Republic Act No. 6646 constitutional.

Held: Yes. It seems a modest proposition that the provision of the Bill of Rights which enshrines
freedom of speech, freedom of expression and freedom of the press has to be taken in conjunction
with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited
period i.e., "during the election period." In our own society, equality of opportunity to proffer
oneself for public office, without regard to the level of financial resources that one may have at one's
disposal, is clearly an important value. One of the basic state policies given constitutional rank by
Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee
equal access to opportunities for public service and prohibit political dynasties as may be defined by
law." 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.

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. Section 11 (b) does not purport in any way to restrict the reporting by newspapers or
radio or television stations of news or news-worthy events relating to candidates, their qualifications,
political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries
and expressions of belief or opinion by reporters or broadcasters or editors or commentators or
columnists in respect of candidates, their qualifications, and programs and so forth, so long at least
as such comments, opinions and beliefs are not in fact advertisements for particular candidates
covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other
coverage that, in responsible media, is not paid for by candidates for political office. Section 11 (b) as
designed to cover only paid political advertisements of particular candidates.
The limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves is
not unduly repressive or unreasonable.
LT. COL. EDUARDO KAPUNAN, JR., PAF, and LT. COL. NELSON ESLAO, PAF, petitioners,
vs.
AFP CHIEF OF STAFF GEN. RENATO S. DE VILLA, BRIG. GEN. MANUEL CASACLANG, AFP,
COMMODORE VIRGILIO Q. MARCELO, AFP, PMA SUPERINTENDENT COMMODORE ROGELIO
DAYAN, AFP, GENERAL COURT MARTIAL NO. 8, MAJ. PEDRO ROSAL, JAGS, MAJ. FELIX V.
BALDONADO, JAGS, LT. COL. RODULFO MUNAR, JAGS and AFP BOARD OF OFFICERS,
respondents.
Roco, Bunag & Kapunan Law Offices for petitioners.
Office of the Solicitor General for respondents.
RESOLUTION

PER CURIAM:
In this petition for certiorari, prohibition and/or habeas corpus, petitioners, who were implicated in the
unsuccessful coup d'etat of August 28, 1987 and relieved of their duties in the Philippine Military
Academy (PMA), seek the issuance of the writs of certiorari and prohibition (1) to set aside, as null
and void, the "pre-trial investigation" report finding a prima facie case against them and
recommending their trial for mutiny and conduct unbecoming an officer and the denial of their motion
for reconsideration, and (2) to enjoin respondent General Court Martial No. 8 from further proceeding
in the case of "People v. Lt. Col. Eduardo Kapunan, et al." Further, petitioner Kapunan seeks the
issuance of a writ of habeas corpus to procure his release from confinement.
On May 19, 1988, the Court issued an order restraining respondent General Court Martial No. 8 from
proceeding with the arraignment of petitioners scheduled for that date [Rollo, pp. 124-125].
The Solicitor General filed a comment in behalf of the respondents, to which petitioners filed a reply.
After petitioners moved for the early resolution of the case and respondents filed the required
rejoinder, the Court considered the case ripe for resolution.
In brief, the pertinent facts are as follows:
In the aftermath of the failed August 28, 1987 coup d'etat where cadets of the Philippine Military
Academy reportedly openly supported the plotters and issued statements to that effect, respondent
PMA Superintendent Dayan created on August 31, 1987 a PMA Board of Officers to investigate the
alleged involvement of officers and cadets of the PMA [Rollo, p. 187]. A fact-finding investigation was
conducted by the PMA Board from September 1 to 11, 1987 and on September 23, 1987 it submitted
its findings to the AFP Chief of Staff [Rollo, p. 195]. On the basis of the findings of the PMA Board,
respondent AFP Board of Officers recommended on October 8, 1987 the filing of charges against Maj.
Doromal and Lts. Catapang and Baltazar and the reprimand of cadets Paredes, Tutaan, D. Macasaet, F.
Macasaet, Lenterio, Rulloda and Balisi [Rollo, pp. 34-36].
A few days later, respondent PMA Superintendent Dayan verbally instructed the PMA Board of Officers
to take the testimonies of certain witnesses, which it did from October 12 to 16,1987 [Rollo, p. 195].
These statements were submitted to the Chief of Staff [Rollo, p. 37] and became the basis for the
recommendation of the AFP Board, dated October 30, 1987, for the filing of charges against
petitioners [Rollo, pp. 38-40]. Charge sheets (and amended charge sheets) were filed against

petitioners for mutiny and conduct unbecoming an officer (Arts. 67 and 96 of the Articles of War)
[Rollo, pp. 42-45; 72-75] and a "pre-trial investigation" was conducted by respondent Maj. Baldonado.
Petitioners were subpoenaed and required by Maj. Baldonado to file their counter-affidavits or testify
in the "pre-trial investigation" [Rollo, p. 41], but instead of doing so, petitioners filed an untitled
pleading seeking the dismissal of the charges against them [Rollo, pp. 46-68]. In a "pre-trial
investigation" report dated February 1, 1988, a prima facie case was found against petitioners and
the case was recommended for trial by a general court martial [Rollo, pp. 76-80]. Petitioners' motion
to dismiss was also denied.
Thereafter, petitioners were served subpoenas to appear before respondent General Court Martial No.
8 for arraignment. The first scheduled hearing for petitioners' arraignment was reset after three (3)
members of the general court martial inhibited themselves. Petitioners, in the meantime, filed a
motion for reconsideration of the "pre-trial investigation" report. In the next hearing, petitioners
objected to their arraignment and moved for a deferment thereof. When this was denied, petitioners'
civilian counsel (their counsel in this case) moved to be excused from the proceedings. The general
court martial granted the motion and postponed the hearing to May 19, 1988, directing petitioners to
secure the services of new counsel. It was at this point that the instant petition was filed before the
Court.
In the meantime, petitioner Kapunan was allegedly summoned to the General Headquarters of the
AFP for a dialogue, but upon his arrival thereat on September 4, 1987 he was ordered confined under
"house arrest" by then Chief of Staff Gen. Fidel Ramos. On February 19, 1988, the arrest of petitioner
Kapunan, together with three (3) others, was ordered by respondent Chief of Staff De Villa in
connection with the killing of Atty. Rolando Olalia and Leonore Alay-ay [Rollo, p. 69]. On May 19, 1988,
Gen. De Villa ordered the release of Kapunan in connection with the Olalia case since no charges had
been filed therein, but ordered that he remain under confinement as an accused in the case before
respondent General Court Martial No. 8 [Rollo, p. 200]. He has been so detained since then. Likewise,
petitioners Kapunan and Eslao were relieved of their duties and functions as Assistant Chief of Staff
for Operations and Assistant Commandant of Cadets of the PMA, respectively.
After the instant petition was filed, petitioners' motion for reconsideration of the "pre-trial
investigation" report was denied by Gen. De Villa [Rollo, pp 128-129].
The issues raised in the petition are three-fold: (1) whether or not petitioners have been denied due
process of law in the investigation of the charges against them; (2) whether or not respondent Maj.
Baldonado gravely abused his discretion in finding a prima facie case and recommending the trial of
petitioners before a court martial; and (3) whether or not the continued confinement of petitioner
Kapunan is legal.
These issues shall be discussed ad seriatim.
1.
Petitioners contend that they have been denied due process primarily because the procedure
followed in the investigation of the charges against them was not in compliance with the
requirements of the Articles of War (Commonwealth Act No. 408, as amended) and the law on
preliminary investigations (Presidential Decree No. 77, as amended by P.D. No. 911).
Under military law, the conduct of investigations is primarily governed by Art. 71 of the Articles of
War, to wit:
Art. 71Charges; Action upon.Charges and specifications must be signed by a person subject to
military law, and under the oath either that he has personal knowledge of, or has investigated, the
matters set forth therein and that the same are true in fact, to the best of his knowledge and belief.
No charge will be referred to a general court-martial for trial until after a thorough and impartial
investigation thereof shall have been made. This investigation will include inquiries as to the truth of
the matter set forth in said charges, form of charges, and what disposition of the case should be
made in the interest of justice and discipline. At such investigation full opportunity shall be given to
the accused to cross-examine witnesses against him if they are available and to present anything he
may desire in his own behalf, either in defense or mitigation, and the investigating officer shall
examine available witnesses requested by the accused. If the charges are forwarded after such
investigation, they shall be accompanied by a statement of the substance of the testimony taken on
both sides.
xxx

xxx

xxx

On the other hand, P.D. No. 77, as amended by P.D. No. 911, which respondent Maj. Baldonado
applied suppletorily to the Articles of War by requiring petitioners to file their counter-affidavits [Rollo,
p. 41], provides:
Sec. 1.Notwithstanding any provision of law to the contrary and except when an investigation has
been conducted by a judge of first instance, city or municipal judge or other officer in accordance with
law and the Rules of Court of the Philippines, no information for an offense cognizable by the Court of
First Instance shall be filed by the provincial or city fiscal or his assistants or by a state prosecutor,
without first conducting a preliminary investigation in the following manner:
a.
All complaints shall be accompanied by statements of the complainant and his witnesses as
well as other supporting documents. The statements of the complainant and his witnesses shall be
sworn to before any fiscal or state prosecutor or before any government official authorized to
administer oath. The officer administering the oath must certify that he has personally examined the
affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
b.
If on the basis of the complainant's sworn statements and documents submitted, the
investigating fiscal or state prosecutor finds no probable cause to conduct a preliminary investigation,
he shall dismiss the case. If probable cause is established by complainant's evidence, he shall notify
the respondent by issuing a subpoena requiring him to submit his counter-affidavit and the affidavit of
his witnesses, if any, and other supporting documents, within ten (10) days from receipt of such
subpoena. If respondent cannot be subpoenaed, or if subpoenaed he does not appear before the
investigating fiscal or state prosecutor, the preliminary investigation shall proceed without him. To
such subpoena shall be attached a copy of the complaint, the sworn statements and other documents
submitted. Other evidence submitted shall be made available for examination of the respondent or
his counsel. The statements of the respondent and his witnesses shall be sworn to before any fiscal or
state prosecutor or before any government official authorized to administer oath and with the same
certification as above-mentioned. The respondent shall furnish the complainant copies of his counteraffidavits and other supporting documents.
c.
If a prima-facie case is established by the evidence, the investigating fiscal or state prosecutor
shall immediately file the corresponding information in court. If he finds that there is no prima facie
case, he shall dismiss the case unless he believes there are matters to be clarified in which case he
may propound clarificatory questions to the parties or their witnesses affording both parties
opportunity to be present but without right to examine or cross-examine. If the parties or their
counsel so desire, they may submit questions to the fiscal which the latter may in his discretion
propound to the parties concerned.
xxx

xxx

xxx

The Court finds that, contrary to the contention of petitioners, there was substantial compliance with
the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No.
911.
The amended charge sheets, charging petitioners and their co-respondents with mutiny and conduct
unbecoming an officer [Rollo, pp. 42-45; 72-75], were signed by Maj. Antonio Ruiz, a person subject to
military law, after he had investigated the matter through an evaluation of the pertinent records,
including the reports of respondent AFP Board of Officers [Rollo, pp. 34-36; 38-40], and was convinced
of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the
"accuser", in accordance with and in the manner provided under Art. 71 of the Articles of War [Rollo,
pp. 45, 75]. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory
application, the fact that the charge sheets were not certified in the manner provided under said
decrees, i.e., that the officer administering the oath has personally examined the affiant and that he
is satisfied that they voluntarily executed and understood his affidavit, does not invalidate said
charge sheets.
Thereafter, a "pre-trial investigation" was conducted by respondent Maj. Baldonado, wherein,
pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file
their counter-affidavits [Rollo, p. 41]. However, instead of doing so, they filed an untitled pleading
seeking the dismissal of the charges against them [Rollo, pp. 46-68]. That petitioners were not able to
confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado
to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance
with P.D. No. 77, as amended by P. D. No. 911.
Further, petitioners cannot complain that they were denied the opportunity to be heard, considering
that the arguments in their pleading seeking the dismissal of the charges were considered in Maj.

Baldonado's "pre-trial investigation" report, as can be clearly seen from the text of the report itself
[Rollo, pp. 76-80].
Anent petitioners' contention that they were denied due process when they were not given the
opportunity to be heard in the inquiry conducted by the PMA Board of Officers, it must be stressed
that such was in the nature of a fact-finding inquiry, as distinguished from the "pre-trial investigation"
conducted by Maj. Baldonado which corresponds to the preliminary investigation under P.D. No. 77, as
amended by P.D. No. 911, where the object is to determine the existence of a prima facie case that
would warrant the prosecution of the accused. Viewed from another angle, the investigations
conducted by the PMA Board were akin to the investigations conducted by the police and other
investigative agencies to gather facts to support the subsequent filing of the appropriate charges
against suspects.
Collaterally, petitioners argue that they were denied due process because the investigators, Chief of
Staff de Villa, who denied the motion to reconsider the "pre-trial investigation" report, and PMA
Superintendent Dayan, who constituted the PMA Board of Officers and ordered the inquiry, were
themselves culpable for the acts of the PMA cadets and officers on the basis of the doctrine of
command responsibility. This argument must however fail as the doctrine finds no application to the
facts of the case. The acts imputed to petitioners were allegedly in furtherance of the failed coup
d'etat of August 28, 1987, which constituted a breach of and was directed against the chain of
command of the AFP, which De Villa and Dayan formed part of. The fallacy in petitioners' reliance on
the doctrine of command responsibility becomes apparent when their argument is pursued to its
logical end. Under their theory, even the President, as Commander-in-Chief, can ultimately be held
culpable for the unsuccessful August 28, 1987 coup d' etat.
2.
The next issue raised by petitioners is the alleged insufficiency of the evidence to establish a
prima facie case to warrant their prosecution. They argue that the factual findings of Maj. Baldonado
in his "pre-trial investigation" report are insufficient to support a prima facie case for mutiny and
conduct unbecoming an officer under Arts. 67 and 96 of the Articles of War and, therefore, he gravely
abused his discretion, amounting to lack or excess of jurisdiction, in finding a prima facie case and
recommending the trial of petitioners by court martial.
The Court finds the contention unmeritorious. No grave abuse of discretion amounting to lack or
excess of jurisdiction can be attributed to Maj. Baldonado for finding a prima facie case, for such is
supported by the evidence on record. Thus, the "pre-trial investigation" report states:
xxx

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5.
On or about 2400H 28 Aug 87, CAPT ALFREDO BAMBICO JR. PA a member of the Tactics Group
briefed PMA Cadets at the Officer's Lounge about the camp defense plan and the movements of
cadets from PMA to Baguio City. Present at the briefing were respondents LT. COL. EDUARDO
KAPUNAN and LT. COL. NELSON ESLAO and about thirty (30) junior officers. On or about 0200H 29 Aug
87, CAPT CELSO DEL ROSARIO CO Transportation Maintenance Company, PMA received a call from LT.
COL. KAPUNAN J-3, PMA to dispatch two (2) 6 x 6 trucks and one (1) bus to proceed near the vicinity
of the J-3 Office. On or about 0200H - 0300H 29 Aug 87 said vehicles moved out with cadets on board,
and led by respondent l LT. CATAPANG who was on board a jeep. CADET (1 C) JOHN BULALACAO stated
that LT. BALTAZAR was with them in the bus. This movement of cadets and officers was not
sanctioned by the PMA Superintendent. According to SGT. MARBI RIMANDO, driver of one of the 6 x 6
trucks, the cadets were in fatigue uniform, wore black bonnets, had blackened their faces, and were
armed.
6.
SGT. RICARDO LAGMAY, Truck Driver, Motor Pool, TMC PMA averred that he was the driver of
the other 6 x 6 truck with about forty (40) cadets on board, which moved out on that occasion. The
column was, however, stopped at the checkpoint by an MP officer and they halted and parked thereat
for about thirty (30) minutes, after which they returned to the mess hall. CADET (1C) BULALACAO
stated that the cadets were met at the mess hall by LT. COL. KAPUNAN and were informed by the
latter that the cause or coup was already finished. CADET (1C) NEMESIO GACAL stated that he heard
LT. COL. KAPUNAN say, that "we are a hell of a corps". [Rollo, pp. 77].
Maj. Baldonado's findings are also supported by those of the AFP Board of Officers, which considered
the testimonies of witnesses taken by the PMA Board of Officers pursuant to the order of PMA
Superintendent Dayan [see Rollo, pp. 38-40].
3.
Finally, petitioner Kapunan questions the legality of his confinement under "house arrest" and
seeks the issuance of a writ of habeas corpus to procure his release.
The Court finds that petitioner Kapunan's continued confinement is not tainted with illegality.

Among the grounds for the disallowance of the writ of habeas corpus is that the applicant has been
charged with or convicted of in offense [Sec. 4, Rule 102, Rules of Court]. In the instant case,
petitioner Kapunan had been charged with mutiny, a serious offense punishable by death or such
other punishment as a court-martial may direct [Art. 67, Articles of War], for which he may be
arrested or confined under Art. 70 of the Articles of War, to wit:
Art. 70.
Arrest or confinement.Any person subject to military law charged with crime or with a
serious offense under these Articles shall be placed in confinement or in arrest, as circumstances may
require; but when charged with a minor offense only, such person shall not ordinarily be placed in
confinement. Any person placed in arrest under the provisions of this article shall thereby be
restricted to his barracks, quarters, or tent, unless such limits shall be enlarged by proper authority. ...
Thus, at the time petitioner Kapunan applied to this Court for the issuance of the writ of habeas
corpus, there was legal cause for his confinement. On this score, the writ prayed for will not issue.
On the matter of the restriction imposed on petitioner Kapunan as conditions for his "house arrest",
particularly that he may not issue any press statements or give any press conference during the
period of his detention at his quarters in Camp Aguinaldo, Quezon City [Rollo, p. 70], the Court is of
the view that such is justified by the requirements of military discipline. It cannot be gainsaid that
certain liberties of persons in the military service, including the freedom of speech, may be
circumscribed by rules of military discipline. Thus, to a certain degree, individual rights may be
curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a
large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed
without question and rules must be faithfully complied with, irrespective of a soldier's personal views
on the matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer
in the AFP, have to be considered.
ACCORDINGLY, the Court Resolved to DISMISS the Petition. The temporary restraining order issued by
the Court on May 19, 1988 is hereby LIFTED.
SO ORDERED.
G.R. No. L-20569

October 29, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
J. J. KOTTINGER, defendant-appellant.

MALCOLM, J.:
The question to be here decided is whether or not pictures portraying the inhabitants of the country
in native dress and as they appear and can be seen in the regions in which they live, are absence or
indecent. Surprising as it may seem, the question is one of first impression not alone in the Philippine
Islands, but in the United States, Great Britain, and elsewhere. This will explain why a case which
otherwise would be heard and voted in Division has been submitted to the court in banc for decision.
On November 24, 1922, detective Juan Tolentino raided the premises known as Camera Supply Co. at
110 Escolta, Manila. He found and confiscated the post-cards which subsequently were used as
evidence against J. J. Kottinger, the manager of the company.
Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First Instance of
Manila. The information filed in court charged him with having kept for sale in the store of the Camera
Supply Co., obscene and indecedent pictures, in violation of section 12 of Act No. 277. To this
information, the defendant interposed a demurrer based upon the ground that the facts alleged
therein did not constitute an offense and were not contrary to law; but trial court overruled the
demurrer and the defendant duly excepted thereto. Following the presentation of evidence by the
Government and the defense, judgment was rendered finding the defendant guilty of the offense
charged and sentencing him to pay a fine of P50 with subsidiary imprisonment in case of insolvency,
and the costs.
The five errors assigned by defendant-appellant in this court divide themselves into two general
issues. The first point sustained by counsel for the appellant is in nature a technical objection,
growing out of the defendant's demurrer. The second point, in reality the decesive issue, is as

suggested in the beginning of the decision. We will take upon the assignments of errors as thus
classified in order.
Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making obscene or
indecent publications misdemeanors. Said section 12 which, it is contended by the Government, has
here been violated, and which, appellant argues, does not apply to the information and the facts,
reads as follow:
Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps for sale, distributes,
or exhibits any obscene or indecent writing, paper, book, or other matter, or who designs, copies,
draws, engraves, paints, or otherwise prepares any obscene picture or print, or who moulds, cuts,
casts, or otherwise makes any obscene or indecent figure, or who writes, composes, or prints any
notice or advertisement of any such writing, paper, book, print, or figure shall be guilty of a
misdemeanor and punished by a fine of not exceeding one thousand dollars or by imprisonment not
exceeding one year, or both.
Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law which is
intended to bear out his thesis, first, that section 12 does not prohibit the taking, selling, and
publishing of alleged obscene and indecent pictures and prints, and second, that the information in
this case charges no offense prohibited by section 12. Recall, however, that the law provides
punishment, among other things, for any person who keeps for sale or exhibits any absence or
indecent writing, paper, book, or other matter, and that the information charges the defendant,
among other things, with having wilfully and feloniously kept for sale, distribution, or exhibition,
obscene and indecent pictures.
The phrase in the law "or other matter", was apparently added as a sort of "catch-all." While limited
to that which is of the same kind as its antecedent, it is intended to cover kindred subjects. The rule
of ejusdem generis invoked by counsel is by no means a rule of universal application and should be
made to carry out, not to defeat, the legislative intent. Even if the phrase "or other matter" be
cobstrued to mean "or other matter of like kind," pictures and postcards are not so far unrelated to
writings, papers, and books, as not to be covered by the general words (Commonwealth vs. Dejardin
[1878], 126 Mass., 46; 30 Am. Rep., 652; Brown vs. Corbin [1889], 40 Minn., 508).
The line of argumentation is more refined that practical. Once conceded that section 12 of Act No.
277 does not cover the present case, there yet remain for application article 571, No. 2, of the penal
code, and section 730 of the Revised Ordinances of the City of Manila. The section of the Revised
Ordinances cited is most specific when it provides in part that no person shall "exhibit, circulate,
distribute, sell, offer or expose for sale, or give or deliver to another, or cause the same to be done,
any lewd, indecent, or absence book, picture, pamphlet, card, print, paper, writing, mould, cast,
figure, or any other thing."
While admittedly the information is lacking in precision and while the content of section 12 of the
Libel Law is not as inclusive as it might be, we yet conclude that the information is not fatally
defective, and that said section 12 covers the alleged facts.
We come now to decide the main issue. We repeat that our own researches have confirmed the
statement of counsel that no one parrallel case be found. We must perforce reason from the general
to the specific and from universal principle to actual fact.
The pictures which it is argued offend against the law on account of being obscene and indecent,
disclose six different postures of non-Christian inhabitants of the Philippines. Exhibit A carries the
legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young boys and carries the legend
"Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao Belle, Philippines. Greetings from
the Philippines." Exhibit A-3 has the legend "Igorot Girl, Rice Field Costume." Exhibit A-4 has the
legend "Kalinga Girls, Philippines. Exhibit A-5 has the legend "Moros Philippines."
The prosecution produced no evidence proving the postcards obscene and indecent because it
thought the post-cards themselves the best evidence of that fact. The fiscal admitted in open court
"that those pictures represented the natives (non-Christians) in their native dress." The defendant, on
the other hand, attempted to show that the pictures as true to life. Dr. H. Otley Beyer, Professor in the
University of the Philippines, corroborated by other witnesses, testified from his studies in various
parts of the Islands, such as the Mountain Province, Abra, Palawan, and Mindanao and Sulu, that none
of the pictures represented poses which he had not observed on various occasions, and that the
costumes worn by the people in the pictures are the true costumes regularly worn by them. Are such
pictures obscene or indecent?

The word "obscene" ands the term "obscenity" may be defined as meaning something offensive to
chastify, decency, or delicacy. "Indeceny" is an act against behavior and a just delicacy. The test
ordinarily followed by the courts in determining whether a particular publication or other thing is
obscene within the meaning of the statutes, is whether the tendency of the matter charged as
obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into
whose hands a publication or other article charged as being obscene may fall. Another test of
obscenity is that which shocks the ordinary and common sense of men as an indecency, (29 Cyc.,
1315; 8 R. C. L., 312.)
The Philippine statute does not attempt to define obscene or indecent pictures, writings, papers, or
books. But the words "obscene or indecent" are themselves descriptive. They are words in common
used and every person of average intelligence understand their meaning. Indeed, beyond the
evidence furnished by the pictures themselves, there is but little scope for proof bearing on the issue
of obscenity or indecency. Whether a picture is obscene or indecent must depend upon the
circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48 Am. Rep., 635.)
Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting the use of
the mails for obscene matter and prohibiting the importation into the Philippine Islands of articles,
etc., of obscene or indecent character. (U. S. Rev. Stat., art. 3893; 36 stat. at L., 135; 7 Fed. Stat.
Ann., 1194, sec. 3[b].)
"Obscene," as used in the Federal Statutes making it a criminal offense to place in the mails any
obscene, lewd, or lascivious publication, according to the united States Supreme Court and lesser
Federal courts, signifies that form of immorality which has relation to sexual impurity, and has the
same meaning as is given at common law in prosecutions for obscene libel. (Swearingen vs. U. S.
[1896], 161 U. S., 446; U. S. vs. Males [1892], 51 Fed., 41; 6 Words and Phrases, 4888, 4889.)
The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment for despositing
an obscene publication in a United States post-office in violator of the Postal Law. Judge Philips said:
The statute does not undertake to define the meaning of the terms "obscene," etc., further than may
be implied by the succeeding phrase, "or other publication of an indecent character." On the wellorganized canon of construction these words are presumed to have been employed by the law-maker
in their ordinary acceptation and use.
As they cannot be said to have acquired any technical significance as applied to some particular
matter, calling, or profession, but are terms of popular use, the court might perhaps with propriety
leave their import to the presumed intelligence of the jury. A standard dictionary says that "obscene"
mean "offensive to chastity and decency; expressing or presenting to the mind or view something
which delicacy, purity, and decency forbid to be exposed." This mere dictionary definition may be
extended or amplified by the courts in actual practice, preserving, however, its essential though, and
having always due regard to the popular and proper sense in which the legislature employed the
term. Chief Justice Cockburn, in Rex vs. Hicklin (L. R. 3 Q. B., 360), said: "The test of obscenity is this:
Where the tendency of the matter charged as obscene is to deprave and corrupt those whose minds
are open to such immoral influences, and into whose hands a publication of this sort may fall;" and
where "it who suggest to the minds of the young of either sex, or even to persons of more advanced
years, thoughts of the most impure and libidinous character." So, also, it has been held that a book is
obscene which is offensive to decency or chastity, which is immodest, which is indelicate, impure,
causing lewd thoughts of an immoral tendency." U. S. vs. Bennet, 16 Blatchf., 338. Judge Thayer, in U.
S. vs. Clarke, 38 Fed. Rep., 732, observed:
"The word "obscene" ordinarily means something which is offensive to chastity; something that is foul
or filthy, and for that reason is offensive to pure-minded persons. That is the meaning of the word in
the concrete; but when used, as in the statute, to describe the character of a book, pamphlet, or
paper, it means containing immodest and indecent matter, the reading whereof would have a
tendency to deprave and corrupt the minds of those into whose hands the publication might fall
whose minds are open to such immoral influences."
Laws of this character are made for society in the aggregate, and not in particular. So, while there
may be individuals and societies of men and women of peculiar motions are idiosyncrasies, whose
moral sense would neither be depraved nor offended by the publication now under consideration, yet
the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard by which its
obscenity or indecency is to be tested. Rather is the test, what is the judgment of the aggregate
sense of the community reached by it? What is its probable, reasonable effect on the sense of
decency, purity, and chastity of society, extending to the family, made up of men and women, young
boys and girls, the family, which is the common nursery of mankind, the foundation rock upon
which the state reposes?

. . . To the pure all things are pure, is too poetical for the actualities of practical life. There is in the
popular conception and heart such a thing as modesty. It was born in the Garden of Eden. After Adam
and Eve ate of the fruit of the tree of knowledge they passed from the condition of perfectibility which
some people nowadays aspire to, and, their eyes being opened, they discerned that there was both
good and evil; "and they knew that they were naked; and they sewed fig leaves together, and made
themselves aprons." From that day to this civilized man has carried with him the sense of shame,
the feeling that there were some things on which the eye the mind should not look; and where
men and women become so depraved by the use, or so insensate from perverted education, that
they will not evil their eyes, nor hold their tongues, the government should perform the office for
them in protection of the social compact and the body politic.
As above intimated, the Federal statue prohibits the importation or shipment into the Philippine
Islands of the following: "Articles, books, pamphlets, printed matter, manuscripts, typewritten matter,
paintings, illustrations, figures or objects of obscene or indecent character or subversive of public
order." There are, however, in the record, copies of reputable magazines which circulate freely
thruout the United States and other countries, and which are admitted into Philippines without
question, containing illustrations identical in nature to those forming the basis of the prosecution at
bar. Publications of the Philippine Government have also been offered in evidence such as Barton's
"Ifugao Law," the "Philippine Journal of Science" for October, 1906, and the Reports of the Philippine
Commission for 1903, 1912, and 1913, in which are found illustrations either exactly the same or
nearly akin to those which are now impugned.
It appears therefore that a national standard has been set up by the Congress of the United States.
Tested by that standard, it would be extremely doubtful if the pictures here challenged would be held
obscene or indecent by any state of Federal court. It would be particularly unwise to sanction a
different type of censorship in the Philippines that in the United States, or for that matter in the rest
of the world.
The pictures in question merely depict persons as they actually live, without attempted presentation
of persons in unusual postures or dress. The aggregate judgment of the Philippine community, the
moral sense of all the people in the Philippines, would not be shocked by photographs of this type. We
are convicted that the post-card pictures in this case cannot be characterized as offensive to chastity,
or foul, or filthy.
We readily understand the laudable motives which moved the Government to initiate this
prosecution. We fully appreciate the sentiments of colleagues who take a different view of the case.
We would be the last to offend the sensibilities of the Filipino people and the sanction anything which
would hold them up to ridicule in the eyes of mankind. But we emphasize that we are not deciding a
question in political theory or in social ethics. We are dealing with a legal question predicated on a
legal fact, and on this question and fact, we reach the conclusion that there has not been proved a
violation of section 12 of the Libel Law. When other cases predicated on other states of facts are
brought to our attention, we will decide them as they arise.
We seem to recall the statement of counsel that the proprietor of the photographic concern whom he
represents would on his own initiative place suitable and explicit inscriptions on the pictures so that
no one may be misled as to them. Indeed, he might even go further and out of consideration for the
natural sensibilities of his customers, withdraw from sale certain pictures which can be pointed out to
him.
We hold that pictures portraying the inhabitants of the country in native dress and as they appear
and can be seen in the regions in which they live, are not obscene or indecent within the meaning of
the Libel Law. Disagreeing therefore with the appellant on his technical argument but agreeing with
him on his main contention, it becomes our duty to order the dismissal of the information. 1awph!
l.net
Judgment is reversed, the information is dismissed, and the defendant-appellant is acquitted with all
costs de oficio. So ordered.