(United States v. Bustos, G.R. No.
L-12592, any subject matter in which the party
March 08, 1918)
FIRST DIVISION
[G.R. No. L-12592. March 8, 1918.]
THE UNITED STATES, plaintiff-appellee, vs.
FELIPE BUSTOS ET AL., defendants-appellants.
Kincaid & Perkins for appellants.
Acting Attorney-General Paredes, for appellee.
SYLLABUS
1. CONSTITUTIONAL LAW; FREEDOM OF
SPEECH AND PRESS; ASSEMBLY AND
PETITION; HISTORY. Freedom of speech as
cherished in democratic countries was unknown
in the Philippine Islands before 1900. It was
among the reforms sine quibus non insisted upon
by the Filipino People. The Malolos Constitution,
the work of the Revolutionary Congress, in its bill
of rights, zealously guarded these basic rights. A
reform so sacred to the people of these Islands
and won at so dear a cost should now be
protected and carried forward.
2. ID.; ID.; ID.; ID. The Constitution of the
United States and the State constitutions
guarantee the right of freedom of speech and
press and the right of assembly and petition.
Beginning with the President's Instructions to the
Commission of April 7, 1900, these gruaranties
were made effective in the Philippines. They are
now part and parcel of the Organic Law of the
Constitution of the Philippines Islands.
3. ID.; ID.; ID.; STATUTORY CONSTRUCTION.
These paragraphs in the Philippine Bill of
Rights carry with them all the applicable English
and American jurisprudence.
4. ID.; ID.; GENERAL PRINCIPLES. The
interests of society and the maintenance of good
government demand a full discussion public
affairs. Complete liberty to comment on the
conduct of public men is necessary for free
speech. "The people are not obliged to speak of
the conduct of their officials in whispers or with
bated breath in a free government, but only in a
despotism." (Howarth vs. Barlow [1906], 113 App.
Div. N. Y., 510.) Of course, criticism does not
authorize defamation.
5. ID.; ID.; ID. The guaranties of a free
speech and a free press include the right to
criticize judicial conduct.
6. ID.; ASSEMBLY AND PETITION; GENERAL
PRINCIPLES. The right to assemble and
petition is a necessary consequence of republican
institutions and the complement of the right of
free speech. Assembly means a right on the part
of citizens to meet peaceably for consultation in
respect to public affairs. Petition means that any
person or group of persons can apply without fear
of penalty to the appropriate branch or office of
the Government for a redness of grievances.
7. ID.; FREEDOM OF SPEECH AND PRESS;
ASSEMBLY AND PETITION; PRIVILEGE. The
doctrine of privileged communications rests upon
public policy, "which looks to the free and
unfettered administration of justice, through, as
an incidental result, it may, in some instances,
afford an immunity to the evil-disposed and
malignant slanderer." (Abboth vs. National Bank
of Commerce, Tacoma [1899], 175 U. S., 409,
411.)
8. ID.; ID.; ID.; QUALIFIED PRIVILEGE.
Qualified privilege which may be lost by proof of
malice. "A communication made bona fide upon
1|CONSTI2_SEC3_FREEDOM OF EX
communicating has an interest or in reference to
which he has a duty, is privileged, if made to a
person having a corresponding interest or duty,
although it contain criminatory matter which
without this privilege would be slanderous and
actionable." (Harrison vs. Rush, 5 E. & B. 344; 1
Jur. [N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85
E. C. L., 344.)
9. ID.; ID.; ID.; ID.; Even when the
statements are found to be false, if there is
probable cause for belief in their truthfulness and
the charge is made in good faith, the mantle of
privilege may still cover the mistake of the
individual. Personal injury is not necessary. The
privilege is not defeated by the mere fact that the
communication is made in intemperate terms.
Finally, if a party applies to the wrong person
through some natural and honest mistake as to
the respective functions of various officials, such
an unintentional error would not take the case out
of the privilege.
10. ID.; ID.; ID.; ID.; MALICE. In the usual
libel case, malice can be presumed from
defamatory words. Privilege destroys that
presumption. the onus of proving malice then lies
on the plaintiff.
11. ID.; ID.; ID.; ID. A privileged
communication should not be subjected to
microscopic examination to discover grounds of
malice or falsity. Such excessive scrutiny will
defeat the protection which the law throws over
privileged communications.
12. ID.; ID.; ID. Previous decisions of this
court concerning libel reviewed and
distinguished.
13. ID.; ID.; ID. A petition, prepared and
signed at an assembly of numerous citizens
including affidavits by five individuals, charging a
justice of the peace with malfeasance in office
and asking for his removal, was presented
through lawyers to the Executive Secretary. The
Executive Secretary referred the papers to the
judge of first instance of the district. The judge of
first instance, after investigation, recommended
to the Governor-General that the justice of the
peace filing a motion for new trial, the judge of
first instance ordered the suppression of the
charges and acquitted the justice of the peace of
the same. Criminal action was then begun
against the petitioners, now become the
defendants, charging that portions of the petition
presented to the Executive Secretary were
libelous. The trial court found thirty-two of the
defendants guilty and sentenced each of them to
pay a nominal fine. On a review of the evidence,
we find that express malice was not proved by
the prosecution. Good faith surrounded the action
of the petitioners. Their ends and motives were
justifiable. The charges and the petition were
transmitted through reputable attorneys to the
proper functionary. The defendants are not guilty
and instead of punishing them for an hones
endeavor to improve the public service, they
should rather be commended for their good
citizenship.
DECISION
MALCOLM, J p:
This appeal presents the specific question of
whether or not the defendants and appellants are
guilty of a libel of Roman Punsalan, justice of the
peace of Macabebe and Masantol, Province of
Pampanga. The appeal also submits the larger
PRESSION
question of the attitude which the judiciary
should take in interpreting and enforcing the Libel
Law in connection with the basic prerogatives of
freedom of speech and press, and of assembly
and petition. For a better understanding, the facts
in the present appeal are first narrated in the
order of their occurrence, then certain suggestive
aspects relative to the rights of freedom of
speech and press and of assembly and petition
are interpolated, then the facts are tested by
these principles, and, finally, judgment is
rendered.
First, the facts. In the latter part of 1915,
numerous citizens of the Province of Pampanga
assembled, the prepared and signed a petition to
the Executive Secretary through the law office of
Crossfield & O'Brien, and five individuals signed
affidavits, charging Roman Punsalan, justice of
the peace of Macabebe and Masantol, Pampanga,
with malfeasance in office and asking for his
removal. Crossfield & O'Brien submitted this
petition and these affidavits with a complaint to
the Executive Secretary. The petition transmitted
by these attorneys was signed by thirty-four
citizens apparently owners (now the defendants),
and contained the statements set out in the
formation as libelous. Briefly stated the specific
charges against the justice of the peace were.
1. That Francisca Polintan, desiring to make
complaint against Mariano de los Reyes, visited
the justice of the peace, who first told her that he
would draw up the complaint for P5; afterwards
he said he would take P3 which she paid; also
kept her in the house for four days as a servant
and took from her two chickens and twelve
"gandus;"
2. That Valentin Sunga being interested in a case
regarding land which was on trial before the
justice of the peace, went to see the justice of the
peace to ascertain the result of the trial, and was
told by the justice of the peace that if he wished
to win he must give him P50. Not having this
amount, Sunga gave the justice nothing, and a
few days later was informed that he had lost the
case. Returning again to the office of the justice
of the peace in order to appeal, the justice told
him that he could still win if he would pay P50;
3. That Leoncio Quiambao, having filed a
complaint for assault against four persons, on the
day of the trial the justice called him over to his
house, where he secretly gave him (Quiambao)
P30; and the complaint was thereupon shelved.
The Executive Secretary referred the papers to
the judge of first instance for the Seventh Judicial
District requesting investigation, proper action
and report. The justice of the peace was notified
and denied the charges. The judge of first
instance found the first count not proved and
counts 2 and 3 established. In view of this result,
the judge, the Honorable Percy M. Moir, was of
the opinion "that it must be, and it is hereby,
recommended to the Governor-General that the
respondent be removed from his position as
justice of the peace of Macabebe and Masantol,
Province of Pampanga, and it is ordered that the
proceedings had in it is ordered that the
proceedings had in this case be transmitted to
the Executive Secretary."
Later the justice of the peace filed a motion for a
new trial; the judge of first instance granted the
motion and reopened the hearing; documents
were introduced, including a letter sent by the
municipal president and is councilors of Masantol,
2|CONSTI2_SEC3_FREEDOM OF EXPRE
Pampanga, asserting that the justice of the peace
was the victim of prosecution, and that one
Agustin Jaime, the auxiliary justice of the peace,
had instituted the charges for personal reasons;
and the judge of first instance ordered a
suppression of the charges against Punsalan and
acquitted him of the same. Attorneys for
complainants thereupon appealed to the
Governor-General as requested the record does
not disclose.
Criminal action against the petitioners, now
become the defendants, was instituted on
October 12, 1916, by virtue of the following
information:
"That on or about the month of December, 1915,
in the municipality of Macabebe, Pampanga, P.I.,
the said accused, voluntarily, illegally, and
criminality and with malicious intent to prejudice
and defame Mr. Roman Punsalan Serrano who
was at said time and place justice of the peace of
Macabebe and Masantol of this province, wrote,
signed, and published a writing which was false,
scandalous, malicious, defamatory, and libelous
against the justice of the peace Mr. Roman
Punsalan Serrano, in which writing appear among
other things the following:
" 'That the justice of the peace, Mr. Roman
Punsalan Serrano, of this town of Macabebe, an
account of the conduct observed by him
heretofore, a conduct highly improper of the
office which he holds, is found to be a public
functionary who is absolutely unfit, eminently
immoral and dangerous to the community, and
consequently unworthy of the office.
" 'That this assertion of the undersigned is
evidenced in a clear and positive manner by facts
so certain, so serious, and so denigrating which
appear in the affidavits attached hereto, and by
other facts no less serious, but which the
undersigned refrain from citing herein for the
sake of brevity and in order not to bother too
much the attention of your Honor and due to lack
of sufficient proof to substantiate them.
" 'That should the higher authorities allow the
said justice of the peace of this town to continue
in his office, the protection of the rights and
interest solemnly guaranteed by the Philippine
Bill of Right, and justice in this town will not be
administered in accordance with law.
" 'Than on account of the wrongful discharge of
his office and of his bad conduct as such justice
of the peace, previous to this time, some
respectable citizens of this town of Macabebe
were compelled to present an administrative case
against the said Roman Punsalan Serrano before
the judge of first instance of Pampanga, in which
case there were made against him various
charges which were true and certain and of
different characters.
" 'That after the said administrative case was
over, the said justice of the peace, far from
changing his bad and despicable conduct, which
has roused the indignation of this town of
Macabebe, subsequently performed the acts
above-mentioned, as stated in the affidavits
herewith attached, as if intending to mock at the
people and to show his mistaken valor and
heroism.'
"All of this has been written and published by the
accused with the deliberate purpose of attacking
the virtue, honor and reputation of the justice of
SSION
the peace, Mr. Roman Punsalan Serrano, and thus
exposing him to public hatred, contempt, and
ridicule. All contrary to law."
It should be noted that the information omits
paragraphs of the petition mentioning the
investigation before the judge of first instance,
the affidavits upon which based and the
concluding words, "To the Executive Secretary,
through the office of Crossfield & O'Brien."
The Honorable Percy M. Moir found all the
defendants, with the exception of Felix
Fernandez, Juan S. Alfonso, Restituto Garcia, and
Manuel Mallari, guilty and sentenced each of
them to pay a fine of P10 and one thirty-second
part of the costs, or to suffer subsidiary
imprisonment in case of insolvency. New
attorneys for the defense, coming into the case,
after the handing down of the decision, filed on
December 16, 1916, a motion for a new trial, the
principal purpose of which was to retire the
objection interposed by then counsel for the
defendants to the admission of Exhibit A
consisting of the entire administrative
proceedings. The trial court denied the motion. All
the defendants, except Melecio S. Sabado and
Fortunato Macalino appealed making the
following assignments of error:
"1. The court erred in overruling the motion of the
convicted defendants for a new trial.
"2. The court erred in refusing to permit the
defendants to retire the objection inadvertently
interposed by their counsel to the admission in
evidence of the expediente administrativo out of
which the accusation in this case arose.
"3. The court erred in sustaining the objection of
the prosecution to the introducing in evidence by
the accused of the affidavits upon which the
petition forming the basis of the libelous charge
was based.
"4. The court erred in not holding that the alleged
libelous statement was unqualifiedly privileged.
"5. The court erred in assuming and impliedly
holding that the burden was on the defendants to
show that the alleged libelous statements were
true and free from malice.
"6. The court erred in not acquitting the
defendants.
"7. The evidence adduced fails to show the guilt
of the defendants beyond a reasonable doubt.
This is especially true of all the defendants,
except Felipe Bustos, Dionisio Mallari, and Jose T.
Reyes."
We have thus far taken it for granted that all the
proceedings, administrative and judicial, were
properly before this court. As a matter of fact
counsel for defendants in the lower court made
an improvident objection to the admission of the
administrative proceedings on the ground that
the signatures were not identified and that the
same was immaterial, which objection was
partially sustained by the trial court.
Notwithstanding this curious situation by reason
of which the attorney for the defense attempted
to destroy through his objection the very
foundation for the justification of his clients, we
shall continue to consider all the proceedings as
before us. Not indicating specifically the reason
for this action, let the following be stated: The
administrative proceedings were the basis of the
accusation, the information, the evidence, and
the judgment rendered. The prosecution cannot
be understood without knowledge of interior
action. Nothing more unjust could be imagined
3|CONSTI2_SEC3_FREEDOM OF EXPRE
than to pick out certain words which standing by
themselves and unexplained are libelous and
then by shutting off all knowledge of facts which
would justify these words, to convict the accused.
The records in question are attached to the rollo,
and either on the ground that the attorneys for
the defense retired the objection to the
introduction of the administrative proceedings by
the prosecution, or that a new trial should have
been had because under section 42 of the Code
of Criminal Procedure "a case may be reopened
on account of errors at law committed at the
trial," or because of the right of this court to call
in such records as are sufficiently incorporated
into the complaint and are essential to a
determination of the case, or finally, because of
our conceded right to take judicial proceedings
supplemental to the basis action, we examine the
record as because us, containing not alone the
trial for libel, but the proceedings previous to that
trial giving rise to it. To this action, the
Government can not complain for it was the
prosecution which tried to incorporated Exhibit A
into the record.
With these facts pleading justification, before
testing them by certain principles which make up
the law of libel and slander, we feel warranted in
seizing the opportunity to intrude an introductory
and general discussion of freedom of speech and
press and assembly and petition in the Philippine
Islands. We conceive that the time is ripe thus to
clear up certain misapprehensions on the subject
and to place these basic rights in their proper
light.
Turning to the pages of history, we state nothing
new when we set down the freedom of speech as
cherished in democratic countries was unknown
in the Philippine Islands before 1900. A prime
cause for revolt was consequently ready made.
Jose Rizal in "Filipinas Despues de Cien Anos"
(The Philippines a Century Hence, pages 62 et
seq.) describing "the reforms sine quibus non,"
which the Filipinos insist upon, said:
"The minister, . . . who wants his reforms to be
reforms, must begin by declaring the press in the
Philippines free and by instituting Filipino
delegates."
The Filipino patriots in Spain, through the
columns of "La Solidaridad" and by other means
invariably in exposing the wants of the Filipino
people demanded." (See Mabini, La Revolucion
Filipina.) The Malolos Constitution, the work of the
Revolutionary Congress, in its Bill of Rights,
zealously guarded freedom of speech and press
and assembly and petition.
Mention is made of the foregoing data only to
deduce the proposition that a reform so sacred to
the people of these Islands and won at so dear as
one would protect and preserve the covenant of
liberty itself.
Net comes the period of American-Filipino
cooperative effort. The Constitution of the United
States and the State constitutions guarantee the
right of freedom of speech and press and the
right of assembly and petition. We are therefore,
not surprised to find President McKinley in that
Magna Charta of Philippine Liberty, the
Instruction to the Second Philippine Commission,
of April 7, 1900, laying down the inviolable rule
"That no law shall be passed abridging the
freedom of speech or of the press or of the rights
of the people to peaceably assemble and petition
the Government for a redress of grievances."
SSION
The Philippine Bill, the Act of Congress of July 1,
1902, and the Jones Law, the Act of Congress of
August 29, 1916, in the nature of organic acts for
the Philippines, continued this guaranty. The
words quoted are not unfamiliar to students of
Constitutional Law, for they are the counterpart
of the first amendment to the Constitution of the
United States, which the American people
demanded before giving their approval to the
Constitution.
We mention the foregoing facts only to deduce
the proposition never to be forgotten for an
instant that the guaranties mentioned are part
and parcel of the Organic Law of the
Constitution of the Philippines Islands.
These paragraphs found in the Philippine Bill of
Rights are not threadbare verbiage. The language
carries with it all the applicable jurisprudence of
great English and American Constitutional cases.
(Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs.
Mortiga [1907], 204 U. S., 470.) And what are
these principles? Volumes would inadequately
answer. But included are the following:
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 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 authorized defamation. Nevertheless, as the
individual is less than the State, so must
expected criticism be born for the common good.
Rising superior to any official, or set of officials, to
the Chief Executive, to the Legislature, to the
Judiciary to any or all the agencies of
Government public opinion should be the
constant source of liberty and democracy. (See
the well considered cases of Wason vs. Walter, 4
L.R. 4 Q. B., 73; Seymour vs. Butterworth, 3 F. &
F., 372; The Queen vs. Sir R. Garden, 5 Q. B. D.,
1.)
The guaranties of a free speech and a free press
include the right to criticize judicial conduct. The
administration of the law is a matter of vital
public concern. Whether the law is wisely or badly
enforced is, therefore, a fit subject for proper
comment. If the people cannot criticize a justice
of the peace or a judge the same as any other
public officer, public opinion will be effectively
muzzled. Attempted terrorization of public
opinion on the part of the judiciary would be
tyranny of the basest sort. The sword of
Damocles in the hands of a judge does not hang
suspended over the individual who dares to
assert his prerogative as a citizen and to stand up
bravely before any official. On the contrary, it is a
duty which every one owes to society or to the
State to assist in the investigation of any alleged
misconduct. It is further the duty of all know of
any official dereliction on the part of a magistrate
or the wrongful act of any public officer to bring
the facts to the notice of those whose duty it is to
inquire into and punish them. In the words of Mr.
Justice Gayner, who contributed so largely to the
4|CONSTI2_SEC3_FREEDOM OF EX
law of libel. "The people are not obliged to speak
of the conduct of their officials in whispers or with
bated breath in a free government, but only in a
despotism." (Howarth vs. Barlow [1906], 113 App.
Div., N. Y., 510.)
The right to assemble and petition is the
necessary consequence of republican institutions
and the complement of the right of free speech.
Assembly means a right on the part of citizens to
meet peaceably for consultation in respect to
public affairs. Petition means that any person or
group of persons can apply, without fear of
penalty, to the appropriate branch or office of the
government for a redress of grievances. The
persons assembling and petitioning must, of
course, assume responsibility for the charges
made.
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.
"The doctrine of privileged communications rests
upon public policy, 'which looks to the free and
unfettered administration of justice, though, as
an incidental result, it may in some instances
afford an immunity to the evil-disposed and
malignant slanderer.'" (Abbott vs. National Bank
of Commerce, Tacoma [1899], 175 U. S., 409,
411.)
Privilege is classified as either absolute or
qualified. With the first, we are not concerned. As
to qualified privilege, it is as the words suggest a
prima facie privilege which may be lost by proof
of malice. The rule is thus stated by Lord
Campbell, C. J.
"A communication made bona fide upon any
subject-matter in which the party communicating
has an interest, or in reference to which he has a
duty, is privileged, if made to a person having a
corresponding interest or duty, although it
contained criminatory matter which without this
privilege would be slanderous and actionable."
(Harrison vs. Bush, 5 E. & B., 344; 1 Jur. [N.S.],
846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L.,
344.)
A pertinent illustration of the application of
qualified privilege is a complaint made in good
faith and without malice in regard to the
character or conduct of a public official when
addressed to an officer or a board having some
interest or duty in the matter. Even when the
statements are found to be false, if there is
probable cause for belief in their truthfulness and
the charge is made in good faith, the mantle of
privilege may still cover the mistake of the
individual. But the statements must be made
under an honest sense of duty; a self-seeking
motive is destructive. Personal injury is not
necessary. All persons have an interest in the
pure and efficient administration of justice and of
public affairs. The duty under which a party is
privileged is sufficient if it is social or moral in its
nature and this person in good faith believe he is
acting in pursuance thereof although in fact he is
mistaken. The privilege is not defeated by the
mere fact that the communication is made in
intemperate terms. A further element of the law
of privilege concerns the person to whom the
complaint should be made. The rule is that if a
party applies to the wrong person through some
natural and honest mistake as to the respective
PRESSION
functions of various officials such unintentional
error will not take the case out of the privilege.
In the usual case malice can be presumed from
defamatory words. Privilege destroy that
presumption. The onus of proving malice then lies
on the plaintiff. The plaintiff must bring home to
the defendant the existence of malice as the true
motive of his conduct. Falsehood and the absence
of probable cause will amount to proof of malice.
(See White vs. Nicholls [1845], 3 How., 266.)
A privileged communication should not be
subjected to microscopic examination to discover
grounds of malice or falsity. Such excessive
scrutiny would defeat the protection which the
law throws over privileged communications. The
ultimate test is that of bona fides. (See white vs.
Nicholls [1845], How., 266; Bradley vs. Heath
[1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz
[1885], 15 R. L., 72; Street, Foundations of Legal
Liability, vol. 1, pp. 308, 309; Newell, Slander and
Libel, various citations; 25 Cyc. pages 385 et
seq.)
Having ascertained the attitude which should be
assumed relative to the basic rights of freedom of
speech and press and of assembly and petition,
having emphasized the point that our Libel Law
as a statute must be construed with reference to
the guaranties of our Organic Law, and having
sketched the doctrine of privilege, we are in a
position to test the facts of this case with these
principles.
It is true that the particular words set out in the
information, if said of a private person, might well
be considered libelous per se. The charges might
also under certain conceivable conditions convict
one of a libel of a government official. As a
general rule words imputing to a judge or a
justice of the peace dishonesty or corruption or
incapacity or misconduct touching him in his
office are actionable. But as suggested in the
beginning we do not have present a simple case
of direct and vicious accusations published in the
press, but of charges predicated on affidavits
made to the proper official and thus qualifiedly
privileged. Express malice has not been proved
by the prosecution. Further, although the charges
are probably not true as to the justice of the
peace, they were believed to be true by the
petitioners. Good faith surrounded their action.
Probable cause for them to think that
malfeasance or misfeasance in office existed is
apparent. The ends and the motives of these
citizens to secure the removal from office of a
person thought to be venal were justifiable. In
no way did they abuse the privilege. These
respectable citizens did not eagerly seize on a
frivolous matter but on instances which not only
seemed to them of a grave character, but which
were sufficient in an investigation by a judge of
first instance to convince him of their
seriousness. No undue publicity was given to the
petition. The manner of commenting on the
conduct of the justice of the peace was proper.
And finally the charges and the petition were
submitted through reputable attorneys to the
proper functionary, the Executive Secretary. In
this connection it is sufficient to note that justices
of the peace are appointed by the Governor-
General, that they may be removed by the
Governor-General upon the recommendation of a
judge of First Instance, or on the Governor-
General's own motion, and that at the time this
action took place the Executive Bureau was the
5|CONSTI2_SEC3_FREEDOM OF EXPRE
office through which the Governor-General acted
in such matters. (See Administrative Code of
1917, secs. 203 and 229, in connection with the
cases of U. S. vs. Galeza [1915], 31 Phil., 365,
and of Harrison vs. Bush, 5 E. & B., 344, holding
that where defendant was subject to removal by
the sovereign, a communication to the Secretary
of State was privileged.)
The present facts are further essentially different
from those established in other cases in which
private individuals have been convicted of libels
of public officials. Malice, traduction, falsehood,
calumny, against the man and not the officer,
have been the causes of the verdict of guilty. (See
U. S. vs. Sedano [1909], 14 Phil., 338, 339; U. S.
vs. Contreras [1912], 23 Phil., 513; U. S. vs.
Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation
for confirmation on the case of the United States
vs. Julio Bustos ([1909], 13 Phil., 690). The Julio
Bustos case, the Attorney-General says, is
identical with the Felipe Bustos case, with the
exception that there has been more publicity in
the present instance and that the person to
whom the charge was made had less jurisdiction
than had the Secretary of Justice in the Julio
Bustos case. Publicity is immaterial if the charge
against Punsalan is in fact a privileged
communication. Moreover, in the Julio Bustos
case we find wild statements, with no basis in
fact, made against reputable members of the
judiciary, "to persons who could not furnish
protection." Malicious and untrue
communications are not privileged. A later case
and one more directly in point to which we invite
special attention is United States vs. Galeza
([1915], 31 Phil., 365). (Note also Yancey vs.
Commonwealth [1909], 122 So. W., 123.)
We find the defendants and appellants entitled to
the protection of the rules concerning qualified
privilege, growing out of constitutional guaranties
in our bill of rights. Instead of punishing citizens
for an honest endeavor to improve the public
service, we should rather commend them for
their good citizenship. The defendants and
appellants are acquitted with the costs de officio.
So ordered.
Arellano, C.J., Johnson, Araullo, Street, and Fisher,
JJ., concur.
(People v. ALARCON Ma, G.R. No. 46551,
December 12, 1939)
EN BANC
[G.R. No. 46551. December 12, 1939.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. SALVADOR ALARCON, ET AL.,
accused. FEDERICO MAGAHAS, respondent-
appellant.
Araneta, Zaragoza & Araneta; for appellant.
Assistant Solicitor-General Salvador Abad Santos;
for appellee.
SYLLABUS
1. CONTEMPT BY NEWSPAPER PUBLICATION;
ELEMENTS OF; WHEN SUIT NOT PENDING.
The elements of contempt by newspaper
publications are well defined by the cases
adjudicated in this as in other jurisdictions.
Newspaper publications tending to impede,
obstruct, embarrass, or influence the courts in
SSION
administering justice in a pending suit or
proceeding constitutes criminal con tempt which
is summarily punishable by the courts. The rule is
otherwise after the cause is ended. (In re Lozano
and Quevedo, 54 Phil., 801; In re Abistado, 57
Phil., 668.) It must, however, clearly appear that
such publications do impede, interfere with, and
embarrass the administration of justice before the
author of the publications should be held for
contempt. (Nixon v. State, 207 Ind., 426; 193 N.
E., 591; 97 A. L. R., 894.) What is thus sought to
be shielded against the influence of newspaper
comments is the all-important duty of the court to
administer justice in the decision of a pending
case. There is no pending case to speak of when
and once the court has come upon a decision and
has lost control either to reconsider or amend it.
That, we believe, is the case at bar, for here we
have a concession that the letter complained of
was published after the Court of First Instance of
Pampanga had decided the aforesaid criminal
case for robbery in band, and after that decision
had been appealed to the Court of Appeals. The
fact that a motion to reconsider its order
confiscating the bond of the accused therein was
subsequently filed may be admitted; but, the
important consideration is that it was then
without power to reopen or modify the decision
which it had rendered upon the merits of the
case, and could not have been influenced by the
questioned publication.
2. ID.; ID.; ID.; JURISDICTION OF ONE COURT
TO PUNISH CONTEMPTS COMMITTED
AGAINST ANOTHER. In the interrelation of
the different courts forming our integrated
judicial system, one court is not an agent or
representative of another and may not, for this
reason, punish contempts in vindication of the
authority and decorum which are not its own. The
appeal transfers the proceedings to the appellate
court, and this last court becomes thereby
charged with the authority to deal with
contempts committed after the perfection of the
appeal.
3. ID.; ID.; ID.; ID. CRIMINAL NATURE OF
CONTEMPT POWER TO PUNISH CONTEMPT
EXERCISED ON PRESERVATIVE NOT VINDICATIVE
PRINCIPLE. It is suggested that "even if there
had been no thing more pending before the trial
court, this still had jurisdiction to punish the
accused for contempt, for the reason that the
publication scandalized the court. (13 C. J., p. 37,
45; o R. C. L., 513.)" The rule suggested, which
has its origin at common law, is involved in some
doubt under modern English law and in the
United States, "the weight of authority, how ever,
is clearly to the effect that comment upon
concluded cases is unrestricted under our
constitutional guaranty of the liberty of the
press." (Annotations, 68 L. R. A., 255.) Other
considerations argue against our adoption of the
suggested holding. As stated, the rule imported
into this jurisdiction is that "newspaper
publications tending to impede, obstruct,
embarrass, or influence the courts in
administering justice in a pending suit or
proceeding constitute criminal contempt which is
summarily punishable by the courts; that the rule
is other wise after the case is ended." (In re
Lozano and Quevedo, supra; In re Abistado,
supra.) In at least two instances, this court has
exercised the power to punish for contempt "on
the preservative and not on the vindictive
6|CONSTI2_SEC3_FREEDOM OF EXPRE
principle" (Villavicencio vs. Lukban, 39 Phil., 778),
"on the corrective and not on the retaliatory idea
of punishment." (In re Lozano and Quevedo,
supra.) Contempt of court is in the nature of a
criminal offense (Lee Yick Hon. V8. Collector of
Customs, 41 Phil., 548), and in considering the
probate effects of the article alleged to be
contemptuous, every fair and reasonable
inference consistent with the theory of
defendants innocence will be indulged ( State v.
New Mexican Printing Co., 25 N. M., 102, 177 p.
751), and where a reasonable doubt in fact or in
law exists as to the guilt of one of constructive
contempt for interfering with the due
administration of justice the doubt must be re
solved in his favor, and he must be acquitted.
(State v. Hazel tine, 82 Wash., 81, 143 p. 436.)
DECISION
LAUREL, J p:
As an aftermath of the decision rendered by the
Court of First Instance of Pampanga in criminal
case No. 5733, The People of the Philippines vs.
Salvador Alarcon, et al., convicting the accused
therein except one of the crime of robbery
committed in band, a denunciatory letter, signed
by one Luis M. Taruc, was addressed to His
Excellency, the President of the Philippines. A
copy of said letter found its way to the herein
respondent, Federico Manga has who, as
columnist of the Tribune, a newspaper of general
circulation in the Philippines, quoted the letter in
an article published by him in the issue of that
paper of September 23, 1937. The objectionable
portion is inserted in the following petition of the
provincial fiscal of Pampanga, filed with the Court
of First Instance of that province on September
29, 1937:
"PETITION PARA QUE FEDERICO MAGAHAS SEA
CASTIGADO POR DESACATO
"Comparece el fiscal provincial que suscribe y al
Hon. Juzgado, como motivos de accion,
respetuosamente alega:
1. Que el 23 de julio de 1937, el que suscribe
presento una querella en la causa arriba titulada,
por el delito de ROBO EN CUADRILLA, habiendose
celebrado la vista de esta causa durante los dias
28, 29 y 30 del mismo mes y ao;
2. Que el 2 de agosto de 1937, el Hon. Juzgado
dicto su decision declarando culpables a los
cincuenta y dos acusa dos, y condenando al
acusado Ricardo Serrano 1. como jefe de la
cuadrilla, a una pena indeterminada no menor de
cuatro meses de arresto mayor, ni mayor de
cuatro aos de prision correccional, y a todos los
demas acusados a una pena indeterminada no
menor de dos meses y un dia de arresto mayor,
ni mayor de tres aos, ocho meses y un dia de
prision correccional y al pago proporcional de las
costas;
3. Que el 9 de agosto de 1937, no estando
conformes de esta decision, 108 referidos
acusados presentaron su es crito de apelacion
para ante la Corte de Apelaciones;
4. Que el 23 de septiembre de 1937, el recurrido
Fede rico Magahas escribio, redacto, imprimio y
publico e hizo que se publicara en el periodico
diario The Tribune que se edite en la Ciudad de
Manila y de general circulacion en las Islas
Filipinas, en su numero correspondiente a dicha
fecha, un articulo que hacia referencia a este
Hon. Juzgado y a la actuacion de este en esta
SSION
causa, cuyo articulo en parte es del tenor publication of the letter to the President simply
siguiente: constitutes an indirect criticism of the methods of
'Fifty-two (52) tenants in Floridablanca,
the Popular Front in building up its political
Pampanga, have been charged and convicted on prestige.
a trumped up charge of robbery in band because "5. That the publication of the letter in question
they took each a few cavans of palay for which did not and does not embarrass, impede,
they issued the corresponding receipts, from the intimidate or influence this Honorable Court in
bodega in the hacienda where they are working. the exercise of its judicial functions, or prevent an
These tenants contend that they have the right to impartial trial in this case, inasmuch as the case
take the palay for their food as the hacienda has already been decided.
owner has the obligation to give them rations of " 6. That the respondent alleges that this case is
palay for their main tenance and their families tono longer pending before this Hon. Court and
be paid later with their share of their crop. But therefore the Court has lost its jurisdiction over it.
this is not all. When the convicted tenants "7. The respondent contends that the portion of
appealed the case and were released on bail the article quoted by the provincial fiscal in his
pending their appeal, court and public officials petition for contempt does not constitute
exerted pressure upon one of their bondsmen, as contempt of court because it does not attack nor
this bondsman informed the tenants, to withdraw question the judgment of the Court but only
his bail for them, and the fifty two tenants were explain the side of the defendant.
arrested again and put in jail.' "8. 'The general rule is that to constitute any
5. Que la publicacion de este articulo acotado publication a contempt it must have reference to
constituye un verdadero desacato al Tribunal, a matter then pending in court, and be of a
porque tiene por objeto obstaculizar la recta character tending to the injury of pending
administrion de justicia, y tiende, ademas, a proceeding before it and of the subsequent
impresionar en el animo del Tribunal y a ejercer proceeding. It is accordingly held that libelous
influencia en la decision que se dictare en este comments upon a sentence already passed in a
causa; criminal proceeding is not a contempt.' (Percival
6. Que la publicacion de dicho articulo es v. State, 45 Neb., 741; 50 Am. St. Rept., 568; 64
igualmente un verdarero desacato a este Hon. NW. 221; 68 L. R. A., 255.)
Juzgado, por ser completamente falsos y "9. 'But comment upon the lower court's decision
tendenciosos los hechos expuestos en el mismo was held not contemptuous because relating to a
como hechos ejecutados por este Hon. Juzgado; concluded matter, in Re Dalton, 46 Jan., 256; 26
7. Que el recurrido Federico Magahas con dicho Pac., 673 and Dumhan v. State, 6 Iowa, 245;
articulo acotado, voluntaria, maliciosa y
although the case was then pending on appeal.'
deliberadamente trato y se propuso atacar la (68 L. R. IA., 262.) (Emphasis ours.)
honra, virtud y reputacion de este Hon. Juzgado "10. That the publication of the letter in question
exponiendolo el menosprecio y ridiculo del is in line with the constitutional guarantee of
publico por las imputaciones falsas, maliciosas y freedom of the press."
difama torias contenidas en dicho articulo. On November 29, 1937, the lower court entered
"Por tanto, pide se sirva ordenar el
an order, the dispositive part of which reads thus:
emplazamiento del recurrido Federico Magahas, "Considerando, sin embargo, todas las
c/o T. V. T. Publishing Corporation, Calle Florentino
circunstancias del caso, el Juzgado solamente
Torres, Manila, para que comparezca ante este impone al recurrido una multa nominal de P25, o
Hon. Juzgado y conteste a la presente peticion, y,en caso de insolvencia, cinco dias de prision sin
previos los tramites legales, dicho recurido sea perjuicio de la accion por libelo que el fiscal
castigado por desacato. Pide igualmente se sirva creyere conveniente incoar contra Luis M. Taruc.
dictar cualquier otra resolucion que en derecho "Asi se ordena."
proceda." Respondent Magahas appealed from this order
"San Fernando, Pampanga, septiembre 23, 1937." to the Court of Appeals which later certified the
On the same date, the lower court ordered the case to this Court as involving only a question of
respondent to appear and show cause. The law assigning the following errors allegedly
respondent appeared and filed an answer, committed by the trial court;
alleging: "I. The lower court erred in finding the respondent
"1. That he did not draft and write the paragraph guilty of contempt of court.
above quoted in the petition of the Provincial "II. The lower court erred in considering the letter
Fiscal, but the same is merely a part of a letter quoted in the article in question as falling under
addressed to the President of the Philippines, the Rules on the Investigation of Judges of First
certified copy of which is hereto attached, and Instance.
marked Exhibit '1.' "III. The lower court erred in taking jurisdiction of
"2. That he caused the said letter to be copied the motion for contempt."
without comments or remarks as may been seen Consideration of the first error is all that is
from the attached issue of the 'The Tribune' on necessary as the same will lead incidentally to
September 23, 1937, marked Exhibit '2.' the disposition of the other two.
"3. That in having the said letter copied it was not
The elements of contempt by newspaper
the intention, much less the purpose and design publications are well defined by the cases
of the respondent to attack the honor, virtue and adjudicated in this as in other jurisdictions.
reputation of this Honorable Court but merely Newspaper publications tending to impede,
cited it as an instance of the popular tendency toobstruct, embarrass, or influence the courts in
resort to the President in everything. administering justice in a pending suit or
proceeding constitutes criminal contempt which
"4. That far from reflecting on the honor, virtue is summarily punish able by the courts. The rule
and reputation of this Honorable Court, the is otherwise after the cause is ended. (In re
Lozano and Quevedo, 54 Phil., 801; In re
7|CONSTI2_SEC3_FREEDOM OF EXPRESSION
Abistado, 57 Phil., 668. ) It must, however, clearly
appear that such publications do impede,
interfere with, and embarrass the administration
of justice before the author of the publications
should be held for contempt. (Nixon v. State 207
Ind., 426, 193 N. E., 591, 97 A. L. R., 894.) What is
thus sought to be shielded against the influence
of newspaper comments is the all-important duty
of the court to administer justice in the decision
of a pending case. There is no pending case to
speak of when and once the court has come upon
a decision and has lost control either to
reconsider or amend it. That, we believe, is the
case at bar, for here we have a concession that
the letter complained of was published after the
Court of First Instance of Pampanga had decided
the aforesaid criminal case for robbery in band,
and after that decision had been appealed to the
Court of Appeals. The fact that a motion to
reconsider its order confiscating the bond of the
accused therein was subsequently filed may be
admitted; but, the important consideration is that
it was then without power to reopen or modify the
decision which it had rendered upon the merits of
the case, and could not have been influenced by
the questioned publication.
If it be contended, however, that the publication
of the questioned letter constitutes contempt of
the Court of Appeals where the appeal in the
criminal case was then pending, as was the
theory of the provincial fiscal below which was
accepted by the lower court, we take the view
that in the interrelation of the different courts
forming our integrated judicial system, one court
is not an agent or representative of another and
may not, for this reason, punish contempts in
vindication of the authority and de corum which
are not its own. The appeal transfers the
proceedings to the appellate court, and this last
court be comes thereby charged with the
authority to deal with contempts committed after
the perfection of the appeal.
The Solicitor-General, in his brief, suggests that
"even if there had been nothing more pending
before the trial court, this still had jurisdiction to
punish the accused for contempt, for the reason
that the publication scandalized the court. (13 C.
J., p. 37, 45; o R. C. L., 513.)" The rule suggested,
which has its origin at common law, is involved in
some doubt under modern English law and in the
United States, "the weight of authority, however,
is clearly to the effect that comment upon
concluded cases is unrestricted under our
constitutional guaranty of the liberty of the
press." (Annotations, 68 L. R. A., 255.) Other
considerations argue against our adoption of the
suggested holding. As stated, the rule imported
into this jurisdiction is that "newspaper
publications tending to impede, obstruct,
embarrass, or influence the courts in
administering justice in a pending suit or
proceeding constitute criminal contempt which is
summarily punishable by the courts; that the rule
is otherwise after the case is ended." (In re
Lozano and Quevedo, supra; In re Abistado,
supra.) In at least two instances, this Court has
exercised the power to punish for contempt "on
the preservative and on the vindicative principle"
(Villa vicencio vs. Lukban, 39 Phil., 778), "on the
corrective and not on the retaliatory idea of
punishment". In re Lozano and Quevedo, supra.)
Contempt of court is in the nature of a criminal
offense (Lee Yick Hon vs. Collector of Customs, 41
8|CONSTI2_SEC3_FREEDOM OF EXPRE
Phil., 548), and in considering the probable
effects of the article alleged to be contemptuous,
every fair and reasonable inference consistent
with the theory of defendant's innocence will be
indulged (State v. New Mexican Printing Co., 25 N.
M., 102, 177 p. 751), and where a reasonable
doubt in fact or in law exists as to the guilt of one
of constructive contempt for interfering with the
due administration of justice the doubt must be
resolved in his favor, and he must be acquitted.
(State v. Hazel tine, 82 Wash., 81, 143 p. 436.)
The appealed order is hereby reversed, and the
respondent acquitted, without pronouncement as
to costs. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz and
Concepcion, JJ., concur.
(Ayer Productions Pty. Ltd. v. Capulong,
G.R. No. 82380, 82398, April 29, 1988)
EN BANC
[G.R. No. 82380. April 29, 1988.]
AYER PRODUCTIONS PTY. LTD. and McELROY &
McELROY FILM PRODUCTIONS, petitioners, vs.
HON. IGNACIO M. CAPULONG and JUAN PONCE
ENRILE, respondents.
[G.R. No. 82398. April 29, 1988.]
HAL McELROY, petitioner, vs. HON. IGNACIO M.
CAPULONG, in his capacity as Presiding Judge of
the Regional Trial Court of Makati, Branch 134 and
JUAN PONCE ENRILE, respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
FREEDOM OF SPEECH AND EXPRESSION;
SCOPE. The freedom of speech and of
expression, includes the freedom to film and
produce motion pictures and to exhibit such
motion pictures in theaters or to diffuse them
through television. In our day and age, motion
pictures are a universally utilized vehicle of
communication and medium of expression. Along
with the press, radio and television, motion
pictures constitute a principal medium of mass
communication for information, education and
entertainment.
2. ID.; ID.; ID.; AVAILABLE TO FOREIGN-
OWNED MOTION PICTURE COMPANIES.
This freedom is available in our country both to
locally-owned and to foreign-owned motion
picture companies. Furthermore, the
circumstance that the production of motion
picture films is a commercial activity expected to
yield monetary profit, is not a disqualification for
availing of freedom of speech and of expression.
3. ID.; ID.; ID.; COMMERCIAL MEDIA NOT
EXCLUDED FROM THE EXERCISE THEREOF.
The circumstance that the production of motion
picture films is a commercial activity expected to
yield monetary profit, is not a disqualification for
availing of freedom of speech and of expression.
In our community as in many other countries,
media facilities are owned either by the
government or the private sector but the private
sector-owned media facilities commonly require
to be sustained by being devoted in whole or in
part to revenue producing activities. Indeed,
commercial media constitute the bulk of such
facilities available in our country and hence to
exclude commercially owned and operated media
SSION
from the exercise of constitutionally protected
freedom of speech and of expression can only
result in the drastic contraction of such
constitutional liberties in our country.
4. ID.; ID.; ID.; RIGHT OF PRIVACY,
INCLUDED IN OUR LAW; SCOPE AND
CONTENT MARKED OUT BY CASELAW. It
was demonstrated sometime ago by the then
Dean Irene R. Corts that our law, constitutional
and statutory, does include a right of privacy. It is
left to case law, however, to mark out the precise
scope and content of this right in differing types
of particular situations.
5. ID.; ID.; ID.; ID.; NOT AN ABSOLUTE RIGHT
AND CANNOT BE INVOKED TO RESIST
PUBLICATION AND DISSEMINATION OF
MATTERS OF PUBLIC INTEREST. The right of
privacy or "the right to be let alone," like the right
of free expression, is not an absolute right. A
limited intrusion into a person's privacy has long
been regarded as permissible where that person
is a public figure and the information sought to be
elicited from him or to be published about him
constitute matters of a public character.
Succinctly put, the right of privacy cannot be
invoked to resist publication and dissemination of
matters of public interest. The interest sought to
be protected by the right of privacy is the right to
be free from "unwarranted publicity, from the
wrongful publicizing of the private affairs and
activities of an individual which are outside the
realm of legitimate public concern."
6. ID.; ID.; ID.; ID.; PRIOR RESTRAINT UPON
THE EXERCISE THEREOF PRESUMED
INVALID; PREFERRED CHARACTER OF
FREEDOM OF SPEECH AND EXPRESSION.
The respondent Judge has restrained petitioners
from filming and producing the entire proposed
motion picture. It is important to note that in
Lagunzad, there was no prior restrain of any kind
imposed upon the movie producer who in fact
completed and exhibited the film biography of
Moises Padilla. Because of the preferred character
of the constitutional rights of freedom of speech
and of expression, a weighty presumption of
invalidity vitiates measures of prior restraint upon
the exercise of such freedoms.
7. ID.; ID.; ID.; ID.; FILMING OF PROJECTED
MOTION PICTURE "THE FOUR DAY
REVOLUTION," NOT AN UNLAWFUL
INTRUSION THEREOF; DOCTRINE OF CLEAR
AND PRESENT DANGER UNAVAILING AS
FILMING WAS AS YET UNCOMPLETED. The
production and filming by petitioners of the
projected motion picture "The Four Day
Revolution" does not, in the circumstances of this
case, constitute an unlawful intrusion upon
private respondent's "right of privacy." The
respondent Judge should have stayed his hand,
instead of issuing an ex-parte Temporary
Restraining Order one day after filing of a
complaint by the private respondent and issuing
a Preliminary Injunction twenty (20) days later;
for the projected motion picture was as yet
uncompleted and hence not exhibited to any
audience. Neither private respondent nor the
respondent trial Judge knew what the completed
film would precisely look like. There was, in other
words, no "clear and present danger" of any
9|CONSTI2_SEC3_FREEDOM OF EXPRE
violation of any right to privacy that private
respondent could lawfully assert.
8. ID.; ID.; ID.; ID.; ID.; SUBJECT MATTER OF
FILM IS ONE OF PUBLIC INTEREST AND DOES
NOT RELATE TO THE INDIVIDUAL AND
PRIVATE LIFE OF PRIVATE RESPONDENT
ENRILE. The subject matter of "The Four Day
Revolution" relates to the non-bloody change of
government that took place at Epifanio de los
Sentos Avenue in February 1986, and the train of
events which led up to that denouement. Clearly,
such subject matter is one of public interest and
concern. Indeed, it is, petitioners' argue, of
international interest. The subject thus relates to
a highly critical stage in the history of this
country and as such, must be regarded as having
passed into the public domain and as an
appropriate subject for speech and expression
and coverage by any form of mass media. The
subject matter, as set out in the synopsis
provided by the petitioners and quoted above,
does not relate to the individual life and certainly
not to the private life of private respondent Ponce
Enrile. Unlike in Lagunzad, which concerned the
life story of Moises Padilla necessarily including at
least his immediate family, what we have here is
not a film biography, more or less fictionalized, of
private respondent Ponce Enrile. "The Four Day
Revolution" is not principally about, nor is it
focused upon, the man Juan Ponce Enrile; but it is
compelled, if it is to be historical, to refer to the
role played by Juan Ponce Enrile in the
precipitating and the constituent events of the
change of government in February 1986.
9. ID.; ID.; ID.; ID.; ID.; INTRUSION IS
REASONABLY NECESSARY TO KEEP THE FILM
A TRUTHFUL HISTORICAL ACCOUNT. The
extent of the intrusion upon the life of private
respondent Juan Ponce Enrile that would be
entailed by the production and exhibition of "The
Four Day Revolution" would, therefore, be limited
in character. The extent of that intrusion, as this
Court understands the synopsis of the proposed
film, may be generally described as such
intrusion as is reasonably necessary to keep that
film a truthful historical account. Private
respondent does not claim that petitioners
threatened to depict in "The Four Day Revolution"
any part of the private life of private respondent
or that of any member of his family.
10. ID.; ID.; ID.; ID.; ID.; PUBLIC FIGURE,
DEFINED. "A public figure has been defined as
a person who, by his accomplishments, fame, or
mode of living, or by adopting a profession or
calling which gives the public a legitimate
interest in his doings, his affairs, and his
character, has become a 'public personage.' He
is, in other words, a celebrity. Obviously to be
included in this category are those who have
achieved some degree of reputation by appearing
before the public, as in the case of an actor, a
professional baseball player, a pugilist, or any
other entertainer. The list is, however, broader
than this. It includes public officers, famous
inventors and explorers, war heroes and even
ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a
lodge. It includes, in short, anyone who has
arrived at a position where public attention is
focused upon him as a person.
SSION

11. ID.; ID.; ID.; ID.; ID.; ID.; PRIVATE
RESPONDENT ENRILE IS A PUBLIC FIGURE.
Private respondent is a "public figure" precisely
because, inter alia, of his participation as a
principal actor in the culminating events of the
change of government in February 1986. Because
his participation therein was major in character, a
film reenactment of the peaceful revolution that
fails to make reference to the role played by
private respondent would be grossly unhistorical.
The right of privacy of a "public figure" is
necessarily narrower than that of an ordinary
citizen. Private respondent has not retired into
the seclusion of simple private citizenship. He
continues to be a "public figure." After a
successful political campaign during which his
participation in the EDSA Revolution was directly
or indirectly referred to in the press, radio and
television, he sits in a very public place, the
Senate of the Philippines.
12. ID.; ID.; ID.; ID.; ID.; PORTRAYAL OF
PRIVATE RESPONDENT MUST BE RELATED TO
PUBLIC FACTS. The line of equilibrium in the
specific context of the instant case between the
constitutional freedom of speech and of
expression and the right of privacy, may be
marked out in terms of a requirement that the
proposed motion picture must be fairly truthful
and historical in its presentation of events. There
must, in other words, be no knowing or reckless
disregard of truth in depicting the participation of
private respondent in the EDSA Revolution. There
must, further, be no presentation of the private
life of the unwilling private respondent and
certainly no revelation of intimate or
embarrassing personal facts. The proposed
motion picture should not enter into what Mme.
Justice Melencio-Herrera in Lagunzad referred to
as "matters of essentially private concern." To the
extent that "The Four Day Revolution" limits itself
in portraying the participation of private
respondent in the EDSA Revolution to those
events which are directly and reasonably related
to the public facts of the EDSA Revolution, the
intrusion into private respondent's privacy cannot
be regarded as unreasonable and actionable.
Such portrayal may be carried out even without a
license from private respondent.
13. REMEDIAL LAW; CIVIL PROCEDURE;
COMPLAINT; DISMISSAL; A FUGITIVE
FOREFEITS HIS RIGHT TO PRIVACY
THROUGH COURT PROCESSES. It is,
however, important to dispose of the complaint
filed by former Colonel Honasan who, having
refused to subject himself to the legal processes
of the Republic and having become once again a
fugitive from justice, must be deemed to have
forfeited any right he might have had to protect
his privacy through court processes.
DECISION
FELICIANO, J p:
Petitioner Hal McElroy, an Australian film maker,
and his movie production company, petitioner
Ayer Productions Pty. Ltd. ("Ayer Productions), 1
envisioned, sometime in 1987, the filming for
commercial viewing and for Philippine and
international release, the historic peaceful
struggle of the Filipinos at EDSA (Epifanio de los
Santos Avenue). Petitioners discussed this project
10 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
with local movie producer Lope V. Juban, who
suggested that they consult with the appropriate
government agencies and also with General Fidel
V. Ramos and Senator Juan Ponce Enrile, who had
played major roles in the events proposed to be
filmed.
The proposed motion picture entitled "The Four
Day Revolution" was endorsed by the Movie
Television Review and Classification Board as well
as the other government agencies consulted.
General Fidel Ramos also signified his approval of
the intended film production.
In a letter dated 16 December 1987, petitioner
Hal McElroy, informed private respondent Juan
Ponce Enrile about the projected motion picture
enclosing a synopsis of it, the full text of which is
set out below:
"The Four Day Revolution is a six hour mini-series
about People Power a unique event in modern
history that made possible the peaceful
revolution in the Philippines in 1986.
Faced with the task of dramatising these
remarkable events, screenwriter David
Williamson and history Prof. Al McCoy have
chosen a 'docu-drama' style and created [four]
fictitious characters to trace the revolution from
the death of Senator Aquino, to the February
revolution and the fleeing of Marcos from the
country.
These characters' stories have been woven
through the real events to help our huge
international audience understand this
extraordinary period in Filipino history.
First, there's Tony O'Neil, an American television
journalist working for a major network Tony
reflects the average American attitude to the
Philippines once a colony, now the home of
crucially important military bases. Although Tony
is aware of the corruption and of Marcos'
megalomania, for him, there appears to be no
alternative to Marcos except the Communists.
Next, Angie Fox, a fiery Australian photo-
journalist. A 'new girl in town,' she is quickly
caught up in the events as it becomes clear that
the time has come for a change. Through Angie
and her relationship with one of the Reform Army
Movement Colonels (a fictitious character), we
follow the developing discontent in the armed
forces. Their dislike for General Ver, their strong
loyalty to Defense Minister Enrile, and ultimately
their defection from Marcos. LLjur
The fourth fictitious character is Ben Balano, a
middle-aged editor of a Manila newspaper who
despises the Marcos regime and is a supporter
and promoter of Cory Aquino. Ben has two
daughters, Celie a left-wing lawyer who is a
secret member of the New People's Army, and
Eva a P.R. girl, politically moderate and very
much in love with Tony. Ultimately, she must
choose between her love and the revolution.
Through the interviews and experiences of these
central characters, we show the complex nature
of Filipino society, and the intertwining series of
events and characters that triggered these
remarkable changes.
Through them also, we meet all of the principal
characters and experience directly dramatic
recreation of the revolution. The story
incorporates actual documentary footage filmed
during the period which we hope will capture the
unique atmosphere and forces that combined to
overthrow President Marcos.
David Williamson is Australia's leading playwright
with some 14 hugely successful plays to his credit
('Don's Party,' 'The Club, 'Travelling North') and
11 feature films ('The Year of Living Dangerously,'
'Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales)
is an American historian with a deep
understanding of the Philippines, who has worked
on the research for this project for some 18
months. Together with David Williamson they
have developed a script we believe accurately
depicts the complex issues and events that
occurred during the period.
The six-hour mini-series is a McElroy and McElroy
co-production with Home Box Office in America,
the Australian Broadcasting Corporation in
Australia and Zenith Productions in the United
Kingdom."
The proposed motion picture would be essentially
a reenactment of the events that made possible
the EDSA revolution; it is designed to be viewed
in a six-hour mini-series television play,
presented in a "docu-drama" style, creating four
(4) fictional characters interwoven with real
events, and utilizing actual documentary footage
as background.
On 21 December 1987, private respondent Enrile
replied that "[he] would not and will not approve
of the use, appropriation, reproduction and/or
exhibition of his name, or picture, or that of any
member of his family in any cinema or television
production, film or other medium for advertising
or commercial exploitation" and further advised
petitioners that "in the production, airing,
showing, distribution or exhibition of said or
similar film, no reference whatsoever (whether
written, verbal or visual) should be made to [him]
or any member of his family, much less to any
matter purely personal to them."
It appears that petitioners acceded to this
demand and the name of private respondent
Enrile was deleted from the movie script, and
petitioners proceeded to film the projected
motion picture.
On 23 February 1988, private respondent filed a
Complaint with application for Temporary
Restraining Order and Writ of Preliminary
Injunction with the Regional Trial Court of Makati,
docketed as Civil Case No. 88-151 in Branch 134
thereof, seeking to enjoin petitioners from
producing the movie "The Four Day Revolution."
The complaint alleged that petitioners' production
of the mini-series without private respondent's
consent and over his objection, constitutes an
obvious violation of his right of privacy. On 24
February 1988, the trial court issued ex-parte a
11 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Temporary Restraining Order and set for hearing
the application for preliminary injunction.
On 9 March 1988, Hal McElroy filed a Motion to
Dismiss with Opposition to the Petition for
Preliminary Injunction contending that the mini-
series film would not involve the private life of
Juan Ponce Enrile nor that of his family and that a
preliminary injunction would amount to a prior
restraint on their right of free expression.
Petitioner Ayer Productions also filed its own
Motion to Dismiss alleging lack of cause of action
as the mini-series had not yet been completed.
In an Order 2 dated 16 March 1988, respondent
court issued a writ of Preliminary Injunction
against the petitioners, the dispositive portion of
which reads thus:
WHEREFORE, let a writ of preliminary injunction
be issued, ordering defendants, and all persons
and entities employed or under contract with
them, including actors, actresses and members of
the production staff and crew, as well as all
persons and entities acting on defendants' behalf,
to cease and desist from producing and filming
the mini-series entitled "The Four Day Revolution"
and from making any reference whatsoever to
plaintiff or his family and from creating any
fictitious character in lieu of plaintiff which
nevertheless is based on, or bears remote,
substantial or marked resemblance or similarity
to, or is otherwise identifiable with, plaintiff in the
production and filming any similar film or
photoplay, until further orders from this Court,
upon plaintiff's filing of a bond in the amount of
P2,000,000.00, to answer for whatever damages
defendants may suffer by reason of the injunction
if the Court should finally decide that plaintiff was
not entitled thereto. LibLex
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions
came to this Court by a Petition for Certiorari
dated 21 March 1988 with an urgent prayer for
Preliminary Injunction or Restraining Order, which
petition was docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitioner Hal
McElroy also filed a separate Petition for
Certiorari with Urgent Prayer for a Restraining
Order or Preliminary Injunction, dated 22 March
1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the
petitions were consolidated and private
respondent was required to file a consolidated
Answer. Further, in the same Resolution, the
Court granted a limited Temporary Restraining
Order partially enjoining the implementation of
the respondent Judge's Order of 16 March 1988
and the Writ of Preliminary Injunction issued
therein, and allowing the petitioners to resume
producing and filming those portions of the
projected mini-series which do not make any
reference to private respondent or his family or to
any fictitious character based on or bearing
substantial resemblance or similarity to or
identifiable as private respondent.
Private respondent seasonably filed his
Consolidated Answer on 6 April 1988 invoking in
the main a right of privacy.
I scope and content of this right in differing types
The constitutional and legal issues raised by the
present Petitions are sharply drawn. Petitioners'
claim that in producing and filming "The Four Day
Revolution," they are exercising their freedom of
speech and of expression protected under our
Constitution. Private respondent, upon the other
hand, asserts a right of privacy and claims that
the production and filming of the projected mini-
series would constitute an unlawful intrusion into
his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of
speech and of expression, the Court would once
more stress that this freedom includes the
freedom to film and produce motion pictures and
to exhibit such motion pictures in theaters or to
diffuse them through television. In our day and
age, motion pictures are a universally utilized
vehicle of communication and medium of
expression. Along with the press, radio and
television, motion pictures constitute a principal
medium of mass communication for information,
education and entertainment. In Gonzales v.
Katigbak, 3 former Chief Justice Fernando,
speaking for the Court, explained:
"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 (343 US 495 [1942]) 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' (Ibid,
501). 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. . .
."4
This freedom is available in our country both to
locally-owned and to foreign-owned motion
picture companies. Furthermore, the
circumstance that the production of motion
picture films is a commercial activity expected to
yield monetary profit, is not a disqualification for
availing of freedom of speech and of expression.
In our community as in many other countries,
media facilities are owned either by the
government or the private sector but the private
sector-owned media facilities commonly require
to be sustained by being devoted in whole or in
part to revenue producing activities. Indeed,
commercial media constitute the bulk of such
facilities available in our country and hence to
exclude commercially owned and operated media
from the exercise of constitutionally protected
freedom of speech and of expression can only
result in the drastic contraction of such
constitutional liberties in our country.
The counter-balancing claim of private
respondent is to a right of privacy. It was
12 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
demonstrated sometime ago by the then Dean
Irene R. Cortes that our law, constitutional and
statutory, does include a right of privacy. 5 It is
left to case law, however, to mark out the precise
of particular situations. The right of privacy or
"the right to be let alone," 6 like the right of free
expression, is not an absolute right. A limited
intrusion into a person's privacy has long been
regarded as permissible where that person is a
public figure and the information sought to be
elicited from him or to be published about him
constitute matters of a public character. 7
Succinctly put, the right of privacy cannot be
invoked to resist publication and dissemination of
matters of public interest. 8 The interest sought
to be protected by the right of privacy is the right
to be free from "unwarranted publicity, from the
wrongful publicizing of the private affairs and
activities of an individual which are outside the
realm of legitimate public concern." 9
Lagunzad v. Vda. de Gonzales, 10 on which
private respondent relies heavily, recognized a
right to privacy in a context which included a
claim to freedom of speech and of expression.
Lagunzad involved a suit for enforcement of a
licensing agreement between a motion picture
producer as licensee and the widow and family of
the late Moises Padilla as licensors. This
agreement gave the licensee the right to produce
a motion picture portraying the life of Moises
Padilla, a mayoralty candidate of the Nacionalista
Party for the Municipality of Magallon, Negros
Occidental during the November 1951 elections
and for whose murder, Governor Rafael Lacson, a
member of the Liberal Party then in power and
his men were tried and convicted. 11 In affirming
the judgment of the lower court enforcing the
licensing agreement against the licensee who had
produced the motion picture and exhibited it but
refused to pay the stipulated royalties, the Court,
through Mme. Justice Melencio-Herrera, said:
"Neither do we agree with petitioner's submission
that the Licensing Agreement is null and void for
lack of, or for having an illegal cause or
consideration, while it is true that petitioner had
purchased the rights to the book entitled 'The
Moises Padilla Story,' that did not dispense with
the need for prior consent and authority from the
deceased heirs to portray publicly episodes in
said deceased's life and in that of his mother and
the members of his family. As held in Schuyler v.
Curtis, ([1895], 147 NY 434, 42 NE, 31 LRA 286.
49 Am St Rep 671), 'a privilege may be given the
surviving relatives of a deceased person to
protect his memory, but the privilege exists for
the benefit of the living, to protect their feelings
and to prevent a violation of their own rights in
the character and memory of the deceased.'
Petitioner's averment that private respondent did
not have any property right over the life of Moises
Padilla since the latter was a public figure, is
neither well taken. Being a public figure ipso facto
does not automatically destroy in toto a person's
right to privacy. The right to invade a person's
privacy to disseminate public information does
not extend to a fictional or novelized
representation of a person, no matter how public
a figure he or she may be (Garner v. Triangle
Publications, DCNY, 97 F. Supp., 564, 549 [1951]).
In the case at bar, while it is true that petitioner
exerted efforts to present a true-to-life story of
Moises Padilla, petitioner admits that he included
a little romance in the film because without it, it
would be a drab story of torture and brutality." 12
In Lagunzad, the Court had need, as we have in
the instant case, to deal with contraposed claims
to freedom of speech and of expression and to
privacy. Lagunzad the licensee in effect claimed,
in the name of freedom of speech and
expression, a right to produce a motion picture
biography at least partly "fictionalized" of Moises
Padilla without the consent of and without paying
pre-agreed royalties to the widow and family of
Padilla. In rejecting the licensee's claim, the Court
said:
Lastly, neither do we find merit in petitioner's
contention that the Licensing Agreement
infringes on the constitutional right of freedom of
speech and of the press, in that, as a citizen and
as a newspaperman, he had the right to express
his thoughts in film on the public life of Moises
Padilla without prior restraint. The right of
freedom of expression, indeed, occupies a
preferred position in the 'hierarchy of civil
liberties' (Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc.,
51 SCRA 191 [1963]). It is not, however, without
limitations. As held in Gonzales v. Commission on
Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctrine is that the clear and
present danger rule is such a limitation. Another
criterion for permissible limitation on freedom of
speech and of the press, which includes such
vehicles of the mass media as radio, television
and the movies, is the 'balancing-of-interests test'
(Chief Justice Enrique M. Fernando on the Bill of
Rights, 1970 ed., p. 79). The principle 'requires a
court to take conscious and detailed
consideration of the interplay of interests
observable in a given situation or type of
situation' (Separation Opinion of the late Chief
Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899). cdphil
In the case at bar, the interests observable are
the right to privacy asserted by respondent and
the right of freedom of expression invoked by
petitioner. Taking into account the interplay of
those interests, we hold that under the particular
circumstances presented and considering the
obligations assumed in the Licensing Agreement
entered into by petitioner, the validity of such
agreement will have to be upheld particularly
because the limits of freedom of expression are
reached when expression touches upon matters
of essentially private concern. 13
Whether the "balancing of interests test" or the
"clear and present danger test" be applied in
respect of the instant Petitions, the Court believes
that a different conclusion must here be reached:
The production and filming by petitioners of the
projected motion picture "The Four Day
Revolution" does not, in the circumstances of this
case, constitute an unlawful intrusion upon
private respondent's "right of privacy."
13 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
1. It may be observed at the outset that what is
involved in the instant case is a prior and direct
restraint on the part of the respondent Judge
upon the exercise of speech and of expression by
petitioners. The respondent Judge has restrained
petitioners from filming and producing the entire
proposed motion picture. It is important to note
that in Lagunzad, there was no prior restrain of
any kind imposed upon the movie producer who
in fact completed and exhibited the film
biography of Moises Padilla. Because of the
preferred character of the constitutional rights of
freedom of speech and of expression, a weighty
presumption of invalidity vitiates measures of
prior restraint upon the exercise of such
freedoms. 14 The invalidity of a measure of prior
restraint does not, of course, mean that no
subsequent liability may lawfully be imposed
upon a person claiming to exercise such
constitutional freedoms. The respondent Judge
should have stayed his hand, instead of issuing
an ex-parte Temporary Restraining Order one day
after filing of a complaint by the private
respondent and issuing a Preliminary Injunction
twenty (20) days later; for the projected motion
picture was as yet uncompleted and hence not
exhibited to any audience. Neither private
respondent nor the respondent trial Judge knew
what the completed film would precisely look like.
There was, in other words, no "clear and present
danger" of any violation of any right to privacy
that private respondent could lawfully assert.
2. The subject matter of "The Four Day
Revolution" relates to the non-bloody change of
government that took place at Epifanio de los
Santos Avenue in February 1986, and the train of
events which led up to that denouement. Clearly,
such subject matter is one of public interest and
concern. Indeed, it is, petitioners' argue, of
international interest. The subject thus relates to
a highly critical stage in the history of this
country and as such, must be regarded as having
passed into the public domain and as an
appropriate subject for speech and expression
and coverage by any form of mass media. The
subject matter, as set out in the synopsis
provided by the petitioners and quoted above,
does not relate to the individual life and certainly
not to the private life of private respondent Ponce
Enrile. Unlike in Lagunzad, which concerned the
life story of Moises Padilla necessarily including at
least his immediate family, what we have here is
not a film biography, more or less fictionalized, of
private respondent Ponce Enrile. "The Four Day
Revolution" is not principally about, nor is it
focused upon, the man Juan Ponce Enrile; but it is
compelled, if it is to be historical, to refer to the
role played by Juan Ponce Enrile in the
precipitating and the constituent events of the
change of government in February 1986.
3. The extent of the intrusion upon the life of
private respondent Juan Ponce Enrile that would
be entailed by the production and exhibition of
"The Four Day Revolution" would, therefore, be
limited in character. The extent of that intrusion,
as this Court understands the synopsis of the
proposed film, may be generally described as
such intrusion as is reasonably necessary to keep
that film a truthful historical account. Private
respondent does not claim that petitioners
threatened to depict in "The Four Day Revolution"
any part of the private life of private respondent
or that of any member of his family.
4. At all relevant times, during which the
momentous events, clearly of public concern,
that petitioners propose to film were taking place,
private respondent was what Profs. Prosser and
Keeton have referred to as a "public figure:"
"A public figure has been defined as a person
who, by his accomplishments, fame, or mode of
living, or by adopting a profession or calling
which gives the public a legitimate interest in his
doings, his affairs, and his character, has become
a 'public personage.' He is, in other words, a
celebrity. Obviously to be included in this
category are those who have achieved some
degree of reputation by appearing before the
public, as in the case of an actor, a professional
baseball player, a pugilist, or any other
entertainer. The list is, however, broader than
this. It includes public officers, famous inventors
and explorers, war heroes and even ordinary
soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a
lodge. It includes, in short, anyone who has
arrived at a position where public attention is
focused upon him as a person. LexLib
Such public figures were held to have lost, to
some extent at least, their right of privacy. Three
reasons were given, more or less indiscrimately,
in the decisions that they had sought publicity
and consented to it, and so could not complain
when they received it; that their personalities and
their affairs had already become public, and
could no longer be regarded as their own private
business; and that the press had a privilege,
under the Constitution, to inform the public about
those who have become legitimate matters of
public interest. On one or another of these
grounds, and sometimes all, it was held that
there was no liability when they were given
additional publicity, as to matters legitimately
within the scope of the public interest they had
aroused.
The privilege of giving publicity to news, and
other matters of public interest, was held to arise
out of the desire and the right of the public to
know what is going on in the world, and the
freedom of the press and other agencies of
information to tell it. 'News' includes all events
and items of information which are out of the
ordinary humdrum routine, and which have 'that
indefinable quality of information which arouses
public attention.' To a very great extent the press,
with its experience or instinct as to what its
readers will want, has succeeded in making its
own definition of news, as a glance at any
morning newspaper will sufficiently indicate. It
includes homicide and other crimes, arrests and
police raides, suicides, marriages and divorces,
accidents, a death from the use of narcotics, a
woman with a rare disease, the birth of a child to
a twelve year old girl, the reappearance of one
supposed to have been murdered years ago, and
undoubtedly many other similar matters of
genuine, if more or less deplorable, popular
appeal.
14 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
The privilege of enlightening the public was not,
however, limited to the dissemination of news in
the sense of current events. It extended also to
information or education, or even entertainment
and amusement, by books, articles, pictures,
films and broadcasts concerning interesting
phases of human activity in general, as well as
the reproduction of the public scene in newsreels
and travelogues. In determining where to draw
the line, the courts were invited to exercise a
species of censorship over what the public may
be permitted to read; and they were
understandably liberal in allowing the benefit of
the doubt." 15
Private respondent is a "public figure" precisely
because, inter alia, of his participation as a
principal actor in the culminating events of the
change of government in February 1986. Because
his participation therein was major in character, a
film reenactment of the peaceful revolution that
fails to make reference to the role played by
private respondent would be grossly unhistorical.
The right of privacy of a "public figure" is
necessarily narrower than that of an ordinary
citizen. Private respondent has not retired into
the seclusion of simple private citizenship. He
continues to be a "public figure." After a
successful political campaign during which his
participation in the EDSA Revolution was directly
or indirectly referred to in the press, radio and
television, he sits in a very public place, the
Senate of the Philippines.
5. The line of equilibrium in the specific context of
the instant case between the constitutional
freedom of speech and of expression and the
right of privacy, may be marked out in terms of a
requirement that the proposed motion picture
must be fairly truthful and historical in its
presentation of events. There must, in other
words, be no knowing or reckless disregard of
truth in depicting the participation of private
respondent in the EDSA Revolution. 16 There
must, further, be no presentation of the private
life of the unwilling private respondent and
certainly no revelation of intimate or
embarrassing personal facts. 17 The proposed
motion picture should not enter into what Mme.
Justice Melencio-Herrera in Lagunzad referred to
as "matters of essentially private concern." 18 To
the extent that "The Four Day Revolution" limits
itself in portraying the participation of private
respondent in the EDSA Revolution to those
events which are directly and reasonably related
to the public facts of the EDSA Revolution, the
intrusion into private respondent's privacy cannot
be regarded as unreasonable and actionable.
Such portrayal may be carried out even without a
license from private respondent.
II
In a Manifestation dated 30 March 1988,
petitioner Hal McElroy informed this Court that a
Temporary Restraining Order dated 25 March
1988, was issued by Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, in Civil
Case No. 88-413, entitled "Gregorio B. Honasan
vs. Ayer Productions Pty. Ltd., McElroy and
McElroy Film Productions, Hal McElroy, Lope Juban
and PMP Motion for Pictures Production" enjoining
him and his production company from further
filming any scene of the projected mini-series
film. Petitioner alleged that Honasan's complaint
was a "scissors and paste" pleading, cut out
straight from the complaint of private respondent
Ponce Enrile in Civil Case No. 88-151. Petitioner
Ayer Productions, in a separate Manifestation
dated 4 April 1988, brought to the attention of
the Court the same information given by
petitioner Hal McElroy, reiterating that the
complaint of Gregorio B. Honasan was
substantially identical to that filed by private
respondent herein and stating that in refusing to
join Honasan in Civil Case No. 88-151, counsel for
private respondent, with whom counsel for
Gregorio Honasan are apparently associated,
deliberately engaged in "forum shopping."
Private respondent filed a Counter-Manifestation
on 13 April 1988 stating that the "slight
similarity" between private respondent's
complaint and that of Honasan in the
construction of their legal basis of the right to
privacy as a component of the cause of action is
understandable considering that court pleadings
are public records; that private respondent's
cause of action for invasion of privacy is separate
and distinct from that of Honasan's although they
arose from the same tortious act of petitioners;
that the rule on permissive joinder of parties is
not mandatory and that, the cited cases on
"forum shopping" were not in point because the
parties here and those in Civil Case No. 88-413
are not identical. LLpr
For reasons that by now have become clear, it is
not necessary for the Court to deal with the
question of whether or not the lawyers of private
respondent Ponce Enrile have engaged in "forum
shopping." It is, however, important to dispose of
the complaint filed by former Colonel Honasan
who, having refused to subject himself to the
legal processes of the Republic and having
become once again a fugitive from justice, must
be deemed to have forfeited any right he might
have had to protect his privacy through court
processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE
COURSE, and the Order dated 16 March 1988 of
respondent trial court granting a Writ of
Preliminary Injunction is hereby SET ASIDE. The
limited Temporary Restraining Order granted by
this Court on 24 March 1988 is hereby MODIFIED
by enjoining unqualifiedly the implementation of
respondent Judge's Order of 16 March 1988 and
made PERMANENT, and
b) Treating the Manifestations of petitioners dated
30 March 1988 and 4 April 1988 as separate
Petitions for Certiorari with Prayer for Preliminary
Injunction or Restraining Order, the Court, in the
exercise of its plenary and supervisory
jurisdiction, hereby REQUIRES Judge Teofilo
Guadiz of the Regional Trial Court of Makati,
Branch 147, forthwith to DISMISS Civil Case No.
88-413 and accordingly to SET ASIDE and
DISSOLVE his Temporary Restraining Order dated
25 March 1988 and any Preliminary Injunction
that may have been issued by him. LLphil
No pronouncement as to costs.
15 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera,
Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla,
Bidin, Sarmiento, Cortes and Grio-Aquino, JJ.,
concur.
(Borjal v. Court of Appeals, G.R. No. 126466,
January 14, 1999)
SECOND DIVISION
[G.R. No. 126466. January 14, 1999.]
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO
SOLIVEN, petitioners, vs. COURT OF APPEALS and
FRANCISCO WENCESLAO,respondents.
Angara Abello Concepcion Regala & Cruz for
petitioners.
Cenon C. Sorreta for private respondent.
SYNOPSIS
The case under consideration is a petition for
review filed by petitioners Arturo Borjal and
Maximo Soliven seeking the reversal of the Court
of Appeals decision in "Francisco Wenceslao vs.
Arturo Borjal and Maximo Soliven," CA-GR No.
40496, holding on March 25, 1996 that
petitioners are solidarily liable for damages for
writing and publishing certain articles claimed to
be derogatory and offensive to private
respondent Francisco Wenceslao. SEcADa
The petition was impressed with merit. The Court
ruled that in order to maintain a libel suit, it is
essential that the victim be identifiable although
it is not necessary that he be named. It is also not
sufficient that the offended party recognized
himself as the person attacked or defamed, but is
must be shown that at least a third person could
identify him as the object of the libelous
publication. Regrettably, these requisites have
not been complied with in the case at bar.
Moreover, the Court said that even assuming that
the contents of these articles are false, mere
error, inaccuracy or even falsity alone does not
prove actual malice. Errors or misstatement are
inevitable in any scheme of truly free expression
and debate. Consistent with good faith and
reasonable care, the press should not be held to
account, to a point of suppression, for honest
mistakes or imperfections in the choice of
language. There must be some room for
misstatement of fact as well as for misjudgment.
Only by giving them much leeway and tolerance
can they courageously and effectively function as
critical agencies in our democracy. Accordingly,
the petition is granted and the decision of the
Court of Appeals and its resolution are reversed
and set aside. CcEHaI
SYLLABUS
1. CRIMINAL LAW; LIBEL; TO MAINTAIN A
LIBEL SUIT, IT IS ESSENTIAL THAT THE
VICTIM BE IDENTIFIABLE ALTHOUGH IT IS
NOT NECESSARY THAT HE BE NAMED. In
order to maintain a libel suit, it is essential that
the victim be identifiable although it is not
necessary that he be named. It is also not
sufficient that the offended party recognized
himself as the person attacked or defamed, but it
must be shown that at least a third person could
identify him as the object of the libelous
publication. Regrettably, these requisites have
not been complied within the case at bar.
2. ID.; ID.; PUBLICATIONS WHICH ARE
PRIVILEGED FOR REASONS OF PUBLIC
POLICY ARE PROTECTED BY THE
CONSTITUTIONAL GUARANTY OF FREEDOM
OF SPEECH. Indisputably, petitioner Borjal's
questioned writings are not within the exceptions
of Art. 354 of the Revised Penal Code for, as
correctly observed by the appellate court, they
are neither private communications nor fair and
true report without any comments or remarks.
However this does not necessarily mean that
they are not privileged. To be sure, the
enumeration under Art. 354 is not an exclusive
list of qualifiedly privileged communications since
fair commentaries on matters of public interest
are likewise privileged. The rule on privileged
communications had its genesis not in the
nation's penal code but in the Bill of Rights of the
Constitution guaranteeing freedom of speech and
of the press. As early as 1918, in United States
vs. Caete (38 Phil. 253), this Court ruled that
publications which are privileged for reasons of
public policy are protected by the constitutional
guaranty of freedom of speech. This
constitutional right cannot be abolished by the
mere failure of the legislature to give it express
recognition in the statute punishing libels. IDTHcA
3. ID.; ID.; PRIVILEGED
COMMUNICATION; IMPLICIT IN FREEDOM OF
SPEECH. The concept of privileged
communications is implicit in the freedom of the
press. As held in Elizalde v. Gutierrez (76 SCRA
448) and reiterated in Santos v. Court of Appeals
(203 SCRA 110) To be more specific, no
culpability could be imputed to petitioners for the
alleged offending publication without doing
violence to the concept of privileged
communications implicit in the freedom of the
press. As was so well put by Justice Malcolm in
Bustos: 'Public Policy, the welfare of society, and
the orderly administration of government have
demanded protection of public opinion. The
inevitable and incontestable result has been the
development and adoption of the doctrine of
privilege.' The doctrine formulated in these two
(2) cases resonates the rule that privileged
communications must, sui generis, be protective
of public opinion. This closely adheres to the
democratic theory of free speech as essential to
collective self-determination and eschews the
strictly libertarian view that it is protective solely
of self-expression which, in the words of Yale
Sterling Professor Owen Fiss, makes its appeal to
the individualistic ethos that so dominates our
popular and political culture. It is therefore clear
that the restrictive interpretation vested by the
Court of Appeals on the penal provision
exempting from liability only private
communications and fair and true report without
comments or remarks defeats, rather than
promotes, the objective of the rule on privileged
communications, sadly contriving as it does, to
suppress the healthy efflorescence of public
debate and opinion as shining linchpins of truly
democratic societies.
4. ID.; ID.; PUBLIC FIGURE; DEFINED.
We deem private respondent a public figure
within the purview of the New York Times
16 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
ruling. At any rate, we have also defined
"public figure" in Ayers Production Pty., Ltd.
v. Capulong (160 SCRA 861) as . . . a
person who, by his accomplishments, fame, mode
of living, or by adopting a profession or calling
which gives the public a legitimate interest in his
doings, his affairs and his character, has become
a public personage. He is, in other words, a
celebrity. Obviously, to be included in his
category are those who have achieved some
degree of reputation by appearing before the
public, as in the case of an actor, a professional
baseball player, a pugilist, or any other
entertainer. The list is, however, broader than
this. It includes public officers, famous inventors
and explorers, war heroes and even ordinary
soldiers, infant prodigy, and no less a personage
than the Great Exalted Ruler of the lodge. It
includes, in short, anyone who has arrived at a
position where the public attention is focused
upon him as a person.
5. ID; ID; FAIR COMMENTARIES ON
MATTERS OF PUBLIC INTEREST ARE
PRIVILEGED AND CONSTITUTE VALID
DEFENSE IN AN ACTION FOR LIBEL OR
SLANDER. To reiterate, fair commentaries on
matters of public interest are privileged and
constitute a valid defense in an action for libel or
slander. The doctrine of fair comment means that
while in general every discreditable imputation
publicly made is deemed false, because every
man is presumed innocent until his guilt is
judicially proved, and every false imputation is
deemed, malicious, nevertheless, when the
discreditable imputation is directed against a
public person in his public capacity, it is not
necessarily actionable. In order that such
discreditable imputation to a public official may
be actionable, it must either be a false allegation
of fact or a comment based on a false
supposition. If the comment is an expression of
opinion, based on established facts, then it is
immaterial that the opinion happens to be
mistaken, as long as it might reasonably be
inferred from the facts. cCSDTI
6. ID.; ID.; MALICE; DEFINED; ABSENT IN
CASE AT BAR. Malice connotes ill will or spite
and speaks not in response to duty but merely to
injure the reputation of the person defamed, and
implies an intention to do ulterior and
unjustifiable harm. Malice is bad faith or bad
motive. It is the essence of the crime of libel. In
the milieu obtaining, can it be reasonably inferred
that in writing and publishing the articles in
question petitioner Borjal acted with malice?
Primarily, private respondent failed to
substantiate by preponderant evidence that
petitioner was animated by a desire to inflict
unjustifiable harm on his reputation, or that the
articles were written and published without good
motives or justifiable ends. On the other hand, we
find petitioner Borjal to have acted in good faith.
Moved by a sense of civic duty and prodded by
his responsibility as a newspaperman, he
proceeded to expose and denounce what he
perceived to be a public deception. Surely, we
cannot begrudge him for that. Every citizen has
the right to enjoy a good name and reputation,
but we do not consider that petitioner Borjal has
violated that right in this case nor abused his
press freedom. Furthermore, to be considered
malicious, the libelous statements must be shown
to have been written or published with the
knowledge that they are false or in reckless
disregard or whether they are false or not.
"Reckless disregard of what is false or not" means
that the defendant entertains serious doubt as to
the truth of the publication, or that he possesses
a high degree of awareness of their probable
falsity.
7. ID.; ID.; PUBLIC OFFICIAL MUST NOT
BE TOO THIN-SKINNED WITH REFERENCE TO
COMMENTS UPON HIS OFFICIAL ACTS.
Even assuming that the contents of the articles
are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of
truly free expression and debate. Consistent with
good faith and reasonable care, the press should
not be held to account, to a point of suppression,
for honest mistakes or imperfections in the choice
of language. There must be some room for
misstatement of fact as well as for misjudgment.
Only by giving them much leeway and tolerance
can they courageously and effectively function as
critical agencies in our democracy. In Bulletin
Publishing Corp. v. Noel (167 SCRA 255) we held
A newspaper especially one national in reach
and coverage, should be free to report on events
and developments in which the public has a
legitimate interest with minimum fear of being
hauled to court by one group or another on
criminal or civil charges for libel, so long as the
newspaper respects and keeps within the
standards of morality and civility prevailing within
the general community. To avoid the self-
censorship that would necessarily accompany
strict liability for erroneous statements, rules
governing liability for injury to reputation are
required to allow an adequate margin of error by
protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires
that liability for defamation of a public official or
public figure may not be imposed in the absence
of proof of "actual malice" on the part of the
person making the libelous statement. At any
rate, it may be salutary for private respondent to
ponder upon the advice of Mr. Justice Malcolm
expressed in U.S. vs. Bustos (37 Phil. 731 [1918]),
that "the interest of society and the maintenance
of good government demand a full discussion of
public affairs. Complete liberty to comment on
the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust
accusation; the wound may be assuaged by the
balm of a clear conscience. A public official must
not be too thin-skinned with reference to
comments upon his official acts." EASCDH
DECISION
"The question is not so much as who was aimed
at as who was hit." (Pound, J., in Corrigan v.
Bobbs-Merill Co., 228 N .Y . 58 [1920]).
BELLOSILLO, J p:
PERPETUALLY HAGRIDDEN as the public is about
losing one of the most basic yet oft hotly
contested freedoms of man, the issue of the right
of free expression bestirs and presents itself time
and again, in cyclic occurrence, to inveigle, nay,
challenge the courts to re-survey its ever shifting
17 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
terrain, explore and furrow its heretofore
uncharted moors and valleys and finally redefine
the metes and bounds of its controversial
domain. This, prominently, is one such case.
LLphil
Perhaps, never in jurisprudential history has any
freedom of man undergone radical doctrinal
metamorphoses than his right to freely and
openly express his views. Blackstone's pontifical
comment that "where blasphemous, immoral,
treasonable, schismatical, seditious, or
scandalous libels are punished by English law . . .
the liberty of the press, properly understood, is by
no means infringed or violated," found kindred
expression in the landmark opinion of England's
Star Chamber in the Libelis Famosis case in 1603.
1 That case established two major propositions in
the prosecution of defamatory remarks: first, that
libel against a public person is a greater offense
than one directed against an ordinary man, and
second, that it is immaterial that the libel be true.
Until republicanism caught fire in early America,
the view from the top on libel was no less dismal.
Even the venerable Justice Holmes appeared to
waffle as he swayed from the concept of criminal
libel liability under the clear and present danger
rule, to the other end of the spectrum in defense
of the constitutionally protected status of
unpopular opinion in free society.
Viewed in modern times and the current
revolution in information and communication
technology, libel principles formulated at one
time or another have waxed and waned through
the years in the constant ebb and flow of judicial
review. At the very least, these principles have
lost much of their flavor, drowned and swamped
as they have been by the ceaseless cacophony
and din of thought and discourse emanating from
just about every source and direction, aided no
less by an increasingly powerful and irrepressible
mass media. Public discourse, laments Knight,
has been devalued by its utter commonality; and
we agree, for its logical effect is to benumb
thought and sensibility on what may be
considered as criminal illegitimate
encroachments on the right of persons to enjoy a
good, honorable and reputable name. This may
explain the imperceptible demise of criminal
prosecutions for libel and the trend to rely instead
on indemnity suits to repair any damage on one's
reputation.
In this petition for review, we are asked to reverse
the Court of Appeals in "Francisco Wenceslao v.
Arturo Borjal and Maximo Soliven," CA-G.R. No.
40496, holding on 25 March 1996 that petitioners
Arturo Borjal and Maximo Soliven are solidarily
liable for damages for writing and publishing
certain articles claimed to be derogatory and
offensive to private respondent Francisco
Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are
among the incorporators of Philippines Today, Inc.
(PTI), now PhilSTAR Daily, Inc., owner of The
Philippine Star, a daily newspaper. At the time the
complaint was filed, petitioner Borjal was its
President while Soliven was (and still is) Publisher
and Chairman of its Editorial Board. Among the
regular writers of The Philippine Star is Borjal who
runs the column Jaywalker.
Private respondent Francisco Wenceslao, on the
other hand, is a civil engineer, businessman,
business consultant and journalist by profession.
In 1988 he served as a technical adviser of
Congressman Fabian Sison, then Chairman of the
House of Representatives Sub-Committee on
Industrial Policy.
During the congressional hearings on the
transport crisis sometime in September 1988
undertaken by the House Sub-Committee on
Industrial Policy, those who attended agreed to
organize the First National Conference on Land
Transportation (FNCLT) to be participated in by
the private sector in the transport industry and
government agencies concerned in order to find
ways and means to solve the transportation
crisis. More importantly, the objective of the
FNCLT was to draft an omnibus bill that would
embody a long-term land transportation policy for
presentation to Congress. The conference which,
according to private respondent, was estimated
to cost around P1,815,000.00 would be funded
through solicitations from various sponsors such
as government agencies, private organizations,
transport firms, and individual delegates or
participants. 2
On 28 February 1989, at the organizational
meeting of the FNCLT, private respondent
Francisco Wenceslao was elected Executive
Director. As such, he wrote numerous solicitation
letters to the business community for the support
of the conference.
Between May and July 1989 a series of articles
written by petitioner Borjal was published on
different dates in his column Jaywalker. The
articles dealt with the alleged anomalous
activities of an "organizer of a conference"
without naming or identifying private respondent.
Neither did it refer to the FNCLT as the conference
therein mentioned. Quoted hereunder are
excerpts from the articles of petitioner together
with the dates they were published 3
31 May 1989
Another self-proclaimed 'hero' of the EDSA
Revolution goes around organizing 'seminars and
conferences' for a huge fee. This is a simple ploy
coated in jazzy letterheads and slick prose. The
'hero' has the gall to solicit fees from anybody
with bucks to spare. Recently, in his usual
straightforward style, Transportation Secretary
Rainerio 'Ray' Reyes, asked that his name be
stricken off from the letterheads the 'hero' has
been using to implement one of his pet
'seminars.' Reyes said: 'I would like to reiterate
my request that you delete my name.' Note that
Ray Reyes is an honest man who would confront
anybody eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called
conference is its unauthorized use of the names
of President Aquino and Secretary Ray Reyes. The
conference program being circulated claims that
President Aquino and Reyes will be main speakers
in the conference. Yet, the word is that Cory and
Reyes have not accepted the invitation to appear
in this confab. Ray Reyes even says that the
conference should be unmasked as a The 'organizer's' principal gamely went along,
moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent
by the organizer to every Tom, Dick and Harry
and to almost all government agencies. And the
18 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
letterheads carried the names of Reyes and
Periquet. Agrarian Reform Secretary on leave
Philip Juico received one, but he decided to find
out from Reyes himself what the project was all
about. Ray Reyes, in effect, advised Juico to put
the fund solicitation letter in the waste basket.
Now, if the 3,000 persons and agencies
approached by the organizer shelled out 1,000
each, that's easily P3 million to a project that
seems so unsophisticated. But note that one
garment company gave P100,000, after which the
Garments Regulatory Board headed by Trade and
Industry Undersecretary Gloria Macapagal-Arroyo
was approached by the organizer to expedite the
garment license application of the P100,000
donor.
21 June 1989
A 'conference organizer' associated with shady
deals seems to have a lot of trash tucked inside
his closet. The Jaywalker continues to receive
information about the man's dubious deals. His
notoriety, according to reliable sources, has
reached the Premier Guest House where his name
is spoken like dung.
xxx xxx xxx
The first information says that the 'organizer'
tried to mulct half a million pesos from a garment
producer and exporter who was being
investigated for violation of the rules of the
Garments, Textile, Embroidery and Apparel Board.
The 'organizer' told the garment exporter that the
case could be fixed for a sum of P500,000.00. The
organizer got the shock of his life when the
exporter told him: 'If I have that amount, I will
hire the best lawyers, not you.' The organizer left
in a huff, his thick face very pale.
xxx xxx xxx
Friends in government and the private sector
have promised the Jaywalker more 'dope' on the
'organizer.' It seems that he was not only
indiscreet; he even failed to cover his tracks. You
will be hearing more of the 'organizer's' exploits
from this corner soon.
22 June 1989
The scheming 'organizer' we have been writing
about seems to have been spreading his wings
too far. A congressional source has informed the
Jaywalker that the schemer once worked for a
congressman from the North as some sort of a
consultant on economic affairs. The first thing the
"organizer" did was to initiate hearings and
round-the-table discussions with people from the
business, export and his favorite the
garments sector.
xxx xxx xxx
thinking that his 'consultant' had nothing but the
good of these sectors in mind. It was only later
that he realized that the 'consultant' was acting
with a burst of energy 'in aid of extortion.' The
'consultant' was fired.
xxx xxx xxx

There seems to be no end to what a man could
do to pursue his dubious ways. He has tried to
operate under a guise of a well-meaning
reformist. He has intellectual pretensions and
sometimes he succeeds in getting his thoughts in
the inside pages of some newspapers, with the
aid of some naive newspaper people. He has
been turning out a lot of funny-looking advice on
investments, export growth, and the like.
xxx xxx xxx
A cabinet secretary has one big wish. He is
hoping for a broad power to ban crooks and
influence-peddlers from entering the premises of
his department. But the Cabinet man might not
get his wish. There is one 'organizer' who, even if
physically banned, can still concoct ways of doing
his thing. Without a tinge of remorse, the
'organizer' could fill up his letterheads with
names of Cabinet members, congressmen, and
reputable people from the private sector to shore
up his shady reputation and cover up his
notoriety.
3 July 1989
A supposed conference on transportation was a
big failure. The attendance was very poor and the
few who participated in the affair were mostly
leaders of jeepney drivers' groups. None of the
government officials involved in regulating public
transportation was there. The big names in the
industry also did not participate. With such a poor
attendance, one wonders why the conference
organizers went ahead with the affair and tried so
hard to convince 3,000 companies and individuals
to contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It
was bound to fail. The personalities who count in
the field of transportation refused to attend the
affair or withdrew their support after finding out
the background of the organizer of the
conference. How could a conference on
transportation succeed without the participation
of the big names in the industry and government
policy-makers?
Private respondent reacted to the articles. He
sent a letter to The Philippine Star insisting that
he was the "organizer" alluded to in petitioner
Borjal's columns. 4 In a subsequent letter to The
Philippine Star, private respondent refuted the
matters contained in petitioner Borjal's columns
and openly challenged him in this manner
To test if Borjal has the guts to back up his holier
than thou attitude, I am prepared to relinquish
this position in case it is found that I have
misappropriated even one peso of FNCLT money.
On the other hand, if I can prove that Borjal has
used his column as a 'hammer' to get clients for
his PR Firm, AA Borjal Associates, he should
resign from the STAR and never again write a
column. Is it a deal? 5
19 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Thereafter, private respondent filed a complaint
with the National Press Club (NPC) against
petitioner Borjal for unethical conduct. He
accused petitioner Borjal of using his column as a
form of leverage to obtain contracts for his public
relations firm, AA Borjal Associates. 6 In turn,
petitioner Borjal published a rejoinder to the
challenge of private respondent not only to
protect his name and honor but also to refute the
claim that he was using his column for character
assassination. 7
Apparently not satisfied with his complaint with
the NPC, private respondent filed a criminal case
for libel against petitioners Borjal and Soliven,
among others. However, in a Resolution dated 7
August 1990, the Assistant Prosecutor handling
the case dismissed the complaint for insufficiency
of evidence. The dismissal was sustained by the
Department of Justice and later by the Office of
the President.
On 31 October 1990 private respondent instituted
against petitioners a civil action for damages
based on libel subject of the instant case. 8 In
their answer, petitioners interposed compulsory
counterclaims for actual, moral and exemplary
damages, plus attorney's fees and costs. After
due consideration, the trial court decided in favor
of private respondent Wenceslao and ordered
petitioners Borjal and Soliven to indemnify private
respondent P1,000,000.00 for actual and
compensatory damages, in addition to
P200,000.00 for moral damages, P100,000.00 for
exemplary damages, P200,000.00 for attorney's
fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the
court a quo but reduced the amount of the
monetary award to P110,000.00 actual damages,
P200,000.00 moral damages and P75,000.00
attorney's fees plus costs. In a 20-page Decision
promulgated 25 March 1996, the appellate court
ruled inter alia that private respondent was
sufficiently identifiable, although not named, in
the questioned articles; that private respondent
was in fact defamed by petitioner Borjal by
describing him variously as a "self-proclaimed
hero," "a conference organizer associated with
shady deals who has a lot of trash tucked inside
his closet," "thick face," and "a person with
dubious ways;" that petitioner's claim of privilege
communication was unavailing since the
privileged character of the articles was lost by
their publication in a newspaper of general
circulation; that petitioner could have performed
his office as a newspaperman without necessarily
transgressing the rights of Wenceslao by calling
the attention of the government offices
concerned to examine the authority by which
Wenceslao acted, warning the public against
contributing to a conference that, according to his
perception, lacked the univocal indorsement of
the responsible government officials, or simply
informing the public of the letters Wenceslao
wrote and the favors he requested or demanded;
and, that when he imputed dishonesty, falsehood
and misrepresentation, shamelessness and
intellectual pretensions to Wenceslao, petitioner
Borjal crossed the thin but clear line that
separated fair comment from actionable
defamation.
Private respondent manifested his desire to
appeal that portion of the appellate court's
decision which reduced the amount of damages
awarded him by filing with this Court a Petition for
Extension of Time to File Petition and a Motion for
Suspension of Time to File Petition. 9 However, in
a Resolution dated 27 May 1996, the Second
Division denied both motions: the first, for being
premature, and the second, for being a wrong
remedy.
On 20 November 1996 when the First Division
consolidated and transferred the present case to
the Second Division, there was no longer any
case thereat with which to consolidate this case
since G.R. No. 124396 had already been disposed
of by the Second Division almost six (6) months
earlier.
On their part, petitioners filed a motion for
reconsideration but the Court of Appeals denied
the motion in its Resolution of 12 September
1996. Hence the instant petition for review. The
petitioners contend that the Court of Appeals
erred: (a) in ruling that private respondent
Wenceslao was sufficiently identified by petitioner
Borjal in the questioned articles; (b) in refusing to
accord serious consideration to the findings of the
Department of Justice and the Office of the
President that private respondent Wenceslao was
not sufficiently identified in the questioned
articles, this notwithstanding that the degree of
proof required in a preliminary investigation is
merely prima facie evidence which is significantly
less than the preponderance of evidence required
in civil cases; (c) in ruling that the subject articles
do not constitute qualifiedly privileged
communication; (d) in refusing to apply the
"public official doctrine" laid down in New York
Times v. Sullivan; (e) in ruling that the questioned
articles lost their privileged character because of
their publication in a newspaper of general
circulation; (f) in ruling that private respondent
has a valid cause of action for libel against
petitioners although he failed to prove actual
malice on their part, and that the prosecutors of
the City of Manila, the Department of Justice, and
eventually, the Office of the President, had
already resolved that there was no sufficient
evidence to prove the existence of libel; and, (g)
assuming arguendo that Borjal should be held
liable, in adjudging petitioner Soliven solidarily
liable with him. Thus, petitioners pray for the
reversal of the appellate court's ruling, the
dismissal of the complaint against them for lack
of merit, and the award of damages on their
counterclaim.
The petition is impressed with merit. In order to
maintain a libel suit, it is essential that the victim
be identifiable although it is not necessary that
he be named. It is also not sufficient that the
offended party recognized himself as the person
attacked or defamed, but it must be shown that
at least a third person could identify him as the
object of the libelous publication. 10 Regrettably,
these requisites have not been complied with in
the case at bar.
In ruling for private respondent, the Court of
Appeals found that Borjal's column writings
sufficiently identified Wenceslao as the
"conference organizer." It cited the First National
Conference on Land Transportation, the
letterheads used listing different telephone
numbers, the donation of P100,000.00 from
Juliano Lim and the reference to the "organizer of
the conference" the very same appellation
employed in all the column items as having
sufficiently established the identity of private
respondent Wenceslao for those who knew about
20 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
the FNCLT who were present at its inception, and
who had pledged their assistance to it. cdasia
We hold otherwise. These conclusions are at
variance with the evidence at hand. The
questioned articles written by Borjal do not
identify private respondent Wenceslao as the
organizer of the conference. The first of the
Jaywalker articles which appeared in the 31 May
1989 issue of The Philippine Star yielded nothing
to indicate that private respondent was the
person referred to therein. Surely, as observed by
petitioners, there were millions of "heroes" of the
EDSA Revolution and anyone of them could be
"self-proclaimed" or an "organizer of seminars
and conferences." As a matter of fact, in his 9
June 1989 column petitioner Borjal wrote about
the "so-called First National Conference on Land
Transportation whose principal organizers are not
specified" (italics supplied). 11 Neither did the
FNCLT letterheads 12 disclose the identity of the
conference organizer since these contained only
an enumeration of names where private
respondent Francisco Wenceslao was described
as Executive Director and Spokesman and not as
a conference organizer. 13 The printout 14 and
tentative program 15 of the conference were
devoid of any indication of Wenceslao as
organizer. The printout which contained an article
entitled "Who Organized the NCLT ?" did not even
mention private respondent's name, while the
tentative program only denominated private
respondent as "Vice Chairman and Executive
Director," and not as organizer.
No less than private respondent himself admitted
that the FNCLT had several organizers and that he
was only a part of the organization, thus
I would like to clarify for the record that I was only
a part of the organization. I was invited then
because I was the head of the technical panel of
the House of Representatives Sub-Committee on
Industrial Policy that took care of congressional
hearings. 16
Significantly, private respondent himself
entertained doubt that he was the person spoken
of in Borjal's columns. The former even called up
columnist Borjal to inquire if he (Wenceslao) was
the one referred to in the subject articles. 17 His
letter to the editor published in the 4 June 1989
issue of The Philippine Star even showed private
respondent Wenceslao's uncertainty
Although he used a subterfuge, I was almost
certain that Art Borjal referred to the First
National Conference on Land Transportation (June
29-30) and me in the second paragraph of his
May 31 column . . . 18
Identification is grossly inadequate when even
the alleged offended party is himself unsure that
he was the object of the verbal attack. It is well to
note that the revelation of the identity of the
person alluded to came not from petitioner Borjal
but from private respondent himself when he
supplied the information through his 4 June 1989
letter to the editor. Had private respondent not
revealed that he was the "organizer" of the FNCLT
referred to in the Borjal articles, the public would
have remained in blissful ignorance of his
identity. It is therefore clear that on the element
of identifiability alone the case falls.
The above disquisitions notwithstanding, and on
the assumption arguendo that private respondent
has been sufficiently identified as the subject of
Borjal's disputed comments, we now proceed to
resolve the other issues and pass upon the
pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors
all revolve around the primary question of
whether the disputed articles constitute
privileged communications as to exempt the
author from liability.
The trial court ruled that petitioner Borjal cannot
hide behind the proposition that his articles are
privileged in character under the provisions of
Art. 354 of The Revised Penal Code which state
Art. 354. Requirement for publicity. Every
defamatory imputation is presumed to be
malicious, even if it be true, if no good intention
and justifiable motive for making it is shown,
except in the following cases:
1) A private communication made by any
person to another in the performance of any
legal, moral or social duty; and,
2) A fair and true report, made in good faith,
without any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or
of any other act performed by public officers in
the exercise of their functions.
Respondent court explained that the writings in
question did not fall under any of the exceptions
described in the above-quoted article since these
were neither "private communications" nor "fair
and true report . . . without any comments or
remarks." But this is incorrect.
A privileged communication may be either
absolutely privileged or qualifiedly privileged.
Absolutely privileged communications are those
which are not actionable even if the author has
acted in bad faith. An example is found in Sec.
11, Art. VI, of the 1987 Constitution which
exempts a member of Congress from liability for
any speech or debate in the Congress or in any
Committee thereof. Upon the other hand,
qualifiedly privileged communications containing
defamatory imputations are not actionable unless
found to have been made without good intention
or justifiable motive. To this genre belong "private
communications" and "fair and true report
without any comments or remarks."
Indisputably, petitioner Borjal's questioned
writings are not within the exceptions of Art. 354
of The Revised Penal Code for, as correctly
observed by the appellate court, they are neither
private communications nor fair and true report
without any comments or remarks. However this
does not necessarily mean that they are not
privileged. To be sure, the enumeration under Art.
354 is not an exclusive list of qualifiedly
privileged communications since fair
commentaries on matters of public interest are
likewise privileged. The rule on privileged
communications had its genesis not in the
nation's penal code but in the Bill of Rights of the
Constitution guaranteeing freedom of speech and
of the press. 19 As early as 1918, in United States
v. Caete, 20 this Court ruled that publications
which are privileged for reasons of public policy
are protected by the constitutional guaranty of
21 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
freedom of speech. This constitutional right
cannot be abolished by the mere failure of the
legislature to give it express recognition in the
statute punishing libels.
The concept of privileged communications is
implicit in the freedom of the press. As held in
Elizalde v. Gutierrez 21 and reiterated in Santos v.
Court of Appeals 22
To be more specific, no culpability could be
imputed to petitioners for the alleged offending
publication without doing violence to the concept
of privileged communications implicit in the
freedom of the press. As was so well put by
Justice Malcolm in Bustos: 'Public policy, the
welfare of society, and the orderly administration
of government have demanded protection of
public opinion. The inevitable and incontestable
result has been the development and adoption of
the doctrine of privilege.'
The doctrine formulated in these two (2) cases
resonates the rule that privileged
communications must, sui generis, be protective
of public opinion. This closely adheres to the
democratic theory of free speech as essential to
collective self-determination and eschews the
strictly libertarian view that it is protective solely
of self-expression which, in the words of Yale
Sterling Professor Owen Fiss, 23 makes its appeal
to the individualistic ethos that so dominates our
popular and political culture. It is therefore clear
that the restrictive interpretation vested by the
Court of Appeals on the penal provision
exempting from liability only private
communications and fair and true report without
comments or remarks defeats, rather than
promotes, the objective of the rule on privileged
communications, sadly contriving as it does, to
suppress the healthy efflorescence of public
debate and opinion as shining linchpins of truly
democratic societies.
To reiterate, fair commentaries on matters of
public interest are privileged and constitute a
valid defense in an action for libel or slander. The
doctrine of fair comment means that while in
general every discreditable imputation publicly
made is deemed false, because every man is
presumed innocent until his guilt is judicially
proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable
imputation is directed against a public person in
his public capacity, it is not necessarily
actionable. In order that such discreditable
imputation to a public official may be actionable,
it must either be a false allegation of fact or a
comment based on a false supposition. If the
comment is an expression of opinion, based on
established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it
might reasonably be inferred from the facts. 24
There is no denying that the questioned articles
dealt with matters of public interest. In his
testimony, private respondent spelled out the
objectives of the conference thus
. . . The principal conference objective is to come
up with a draft of an Omnibus Bill that will
embody a long term land transportation policy for
presentation to Congress in its next regular
session in July. Since last January, the National
Conference on Land Transportation (NCLT), the
conference secretariat, has been enlisting
support from all sectors to ensure the success of
the project. 25

Private respondent likewise testified that the
FNCLT was raising funds through solicitation from
the public
Q: Now, in this first letter, you have attached
a budget and it says here that in this seminar of
the First National Conference on Land
Transportation, you will need around One million
eight hundred fifteen thousand pesos, is that
right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to
raise this fund of your seminar?
A: Well, from sponsors such as government
agencies and private sectors or organizations as
well as individual transport firms and from
individual delegates/participants. 26
The declared objective of the conference, the
composition of its members and participants, and
the manner by which it was intended to be
funded no doubt lend to its activities as being
genuinely imbued with public interest. An
organization such as the FNCLT aiming to reinvent
and reshape the transportation laws of the
country and seeking to source its funds for the
project from the public at large cannot dissociate
itself from the public character of its mission. As
such, it cannot but invite close scrutiny by the
media obliged to inform the public of the
legitimacy of the purpose of the activity and of
the qualifications and integrity of the
personalities behind it.
This in effect is the strong message in New York
Times v. Sullivan 27 which the appellate court
failed to consider or, for that matter, to heed. It
insisted that private respondent was not, properly
speaking, a "public official" nor a "public figure,"
which is why the defamatory imputations against
him had nothing to do with his task of organizing
the FNCLT.
New York Times v. Sullivan was decided by the U.
S. Supreme Court in the 1960s at the height of
the bloody rioting in the American South over
racial segregation. The then City Commissioner L.
B. Sullivan of Montgomery, Alabama, sued New
York Times for publishing a paid political
advertisement espousing racial equality and
describing police atrocities committed against
students inside a college campus. As
commissioner having charge over police actions
Sullivan felt that he was sufficiently identified in
the ad as the perpetrator of the outrage;
consequently, he sued New York Times on the
basis of what he believed were libelous
utterances against him.
The U.S. Supreme Court speaking through Mr.
Justice William J. Brennan Jr. ruled against Sullivan
holding that honest criticisms on the conduct of
public officials and public figures are insulated
from libel judgments. The guarantees of freedom
of speech and press prohibit a public official or
public figure from recovering damages for a
defamatory falsehood relating to his official
conduct unless he proves that the statement was
made with actual malice, i.e., with knowledge
that it was false or with reckless disregard of
whether it was false or not.
22 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
The raison d'etre for the New York Times doctrine
was that to require critics of official conduct to
guarantee the truth of all their factual assertions
on pain of libel judgments would lead to self-
censorship, since would-be critics would be
deterred from voicing out their criticisms even if
such were believed to be true, or were in fact
true, because of doubt whether it could be proved
or because of fear of the expense of having to
prove it. 28
In the present case, we deem private respondent
a public figure within the purview of the New York
Times ruling. At any rate, we have also defined
"public figure" in Ayers Production Pty., Ltd. v.
Capulong 29 as
. . . a person who, by his accomplishments, fame,
mode of living, or by adopting a profession or
calling which gives the public a legitimate
interest in his doings, his affairs and his
character, has become a 'public personage.' He
is, in other words, a celebrity. Obviously, to be
included in this category are those who have
achieved some degree of reputation by appearing
before the public, as in the case of an actor, a
professional baseball player, a pugilist, or any
other entertainer. The list is, however, broader
than this. It includes public officers, famous
inventors and explorers, war heroes and even
ordinary soldiers, infant prodigy, and no less a
personage than the Great Exalted Ruler of the
lodge. It includes, in short, anyone who has
arrived at a position where the public attention is
focused upon him as a person.
The FNCLT was an undertaking infused with public
interest. It was promoted as a joint project of the
government and the private sector, and
organized by top government officials and
prominent businessmen. For this reason, it
attracted media mileage and drew public
attention not only to the conference itself but to
the personalities behind as well. As its Executive
Director and spokesman, private respondent
consequently assumed the status of a public
figure.
But even assuming ex-gratia argumenti that
private respondent, despite the position he
occupied in the FNCLT, would not qualify as a
public figure, it does not necessarily follow that
he could not validly be the subject of a public
comment even if he was not a public official or at
least a public figure, for he could be, as long as
he was involved in a public issue. If a matter is a
subject of public or general interest, it cannot
suddenly become less so merely because a
private individual is involved or because in some
sense the individual did not voluntarily choose to
become involved. The public's primary interest is
in the event; the public focus is on the conduct of
the participant and the content, effect and
significance of the conduct, not the participant's
prior anonymity or notoriety. 30
There is no denying that the questioned articles
dealt with matters of public interest. A reading of
the imputations of petitioner Borjal against
respondent Wenceslao shows that all these
necessarily bore upon the latter's official conduct
and his moral and mental fitness as Executive
Director of the FNCLT. The nature and functions of
his position which included solicitation of funds,
dissemination of information about the FNCLT in
order to generate interest in the conference, and
the management and coordination of the various
activities of the conference demanded from him
utmost honesty, integrity and competence. These
are matters about which the public has the right
to be informed, taking into account the very
public character of the conference itself.
Concededly, petitioner Borjal may have gone
overboard in the language employed describing
the "organizer of the conference." One is tempted
to wonder if it was by some mischievous gambit
that he would also dare test the limits of the "wild
blue yonder" of free speech in this jurisdiction.
But no matter how intemperate or deprecatory
the utterances appear to be, the privilege is not
to be defeated nor rendered inutile for, as
succinctly expressed by Mr. Justice Brennan in
New York Times v. Sullivan, "[D]ebate on public
issues should be uninhibited, robust and wide
open, and that it may well include vehement,
caustic and sometimes unpleasantly sharp
attacks on the government and public officials."
31
The Court of Appeals concluded that since malice
is always presumed in the publication of
defamatory matters in the absence of proof to
the contrary, the question of privilege is
immaterial.
We reject this postulate. While, generally, malice
can be presumed from defamatory words, the
privileged character of a communication destroys
the presumption of malice. 32 The onus of
proving actual malice then lies on plaintiff,
private respondent Wenceslao herein. He must
bring home to the defendant, petitioner Borjal
herein, the existence of malice as the true motive
of his conduct. 33
Malice connotes ill will or spite and speaks not in
response to duty but merely to injure the
reputation of the person defamed, and implies an
intention to do ulterior and unjustifiable harm. 34
Malice is bad faith or bad motive. 35 It is the
essence of the crime of libel. 36
In the milieu obtaining, can it be reasonably
inferred that in writing and publishing the articles
in question petitioner Borjal acted with malice?
Primarily, private respondent failed to
substantiate by preponderant evidence that
petitioner was animated by a desire to inflict
unjustifiable harm on his reputation, or that the
articles were written and published without good
motives or justifiable ends. On the other hand, we
find petitioner Borjal to have acted in good faith.
Moved by a sense of civic duty and prodded by
his responsibility as a newspaperman, he
proceeded to expose and denounce what he
perceived to be a public deception. Surely, we
cannot begrudge him for that. Every citizen has
the right to enjoy a good name and reputation,
but we do not consider that petitioner Borjal has
violated that right in this case nor abused his
press freedom. LLphil
Furthermore, to be considered malicious, the
libelous statements must be shown to have been
written or published with the knowledge that they
are false or in reckless disregard of whether they
are false or not. 37 "Reckless disregard of what is
false or not" means that the defendant entertains
serious doubt as to the truth of the publication,
38 or that he possesses a high degree of
awareness of their probable falsity. 39
The articles subject of the instant case can hardly
be said to have been written with knowledge that
these are false or in reckless disregard of what is
false or not. This is not to say however that the
23 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
very serious allegations of petitioner Borjal
assumed by private respondent to be directed
against him are true. But we nevertheless find
these at least to have been based on reasonable
grounds formed after the columnist conducted
several personal interviews and after considering
the varied documentary evidence provided him
by his sources. Thus, the following are supported
by documentary evidence: (a) that private
respondent requested Gloria Macapagal-Arroyo,
then head of the Garments and Textile Export
Board (GTEB), to expedite the processing and
release of the import approval and certificate of
availability of a garment firm in exchange for the
monetary contribution of Juliano Lim, which
necessitated a reply from the office of Gloria
Macapagal-Arroyo explaining the procedure of the
GTEB in processing applications and clarifying
that all applicants were treated equally; 40 (b)
that Antonio Periquet was designated Chairman
of the Executive Committee of the FNCLT
notwithstanding that he had previously declined
the offer; 41 and, (c) that despite the fact that
then President Aquino and her Secretary of
Transportation Rainerio Reyes declined the
invitation to be guest speakers in the conference,
their names were still included in the printout of
the FNCLT. 42 Added to these are the admissions
of private respondent that: (a) he assisted Juliano
Lim in his application for a quota allocation with
the GTEB in exchange for monetary contributions
to the FNCLT; 43 (b) he included the name of then
Secretary of Transportation Rainerio Reyes in the
promotional materials of the conference
notwithstanding the latter's refusal to lend his
name to and participate in the FNCLT; 44 and, (c)
he used different letterheads and telephone
numbers. 45
Even assuming that the contents of the articles
are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of
truly free expression and debate. Consistent with
good faith and reasonable care, the press should
not be held to account, to a point of suppression,
for honest mistakes or imperfections in the choice
of language. There must be some room for
misstatement of fact as well as for misjudgment.
Only by giving them much leeway and tolerance
can they courageously and effectively function as
critical agencies in our democracy. 46 In Bulletin
Publishing Corp. v. Noel 47 we held
A newspaper especially one national in reach and
coverage, should be free to report on events and
developments in which the public has a
legitimate interest with minimum fear of being
hauled to court by one group or another on
criminal or civil charges for libel, so long as the
newspaper respects and keeps within the
standards of morality and civility prevailing within
the general community.
To avoid the self-censorship that would
necessarily accompany strict liability for
erroneous statements, rules governing liability for
injury to reputation are required to allow an
adequate margin of error by protecting some
inaccuracies. It is for the same reason that the
New York Times doctrine requires that liability for
defamation of a public official or public figure
may not be imposed in the absence of proof of
"actual malice" on the part of the person making
the libelous statement.
At any rate, it may be salutary for private
respondent to ponder upon the advice of Mr.
Justice Malcolm expressed in U.S. v. Bustos, 48
that "the interest of society and the maintenance
of good government demand a full discussion of
public affairs. Complete liberty to comment on
the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust
accusation; the wound may be assuaged by the
balm of a clear conscience. A public official must
not be too thin-skinned with reference to
comments upon his official acts."
The foregoing disposition renders the second and
seventh assigned errors moot and academic,
hence, we find no necessity to pass upon them.
We must however take this opportunity to
likewise remind media practitioners of the high
ethical standards attached to and demanded by
their noble profession. The danger of an unbridled
irrational exercise of the right of free speech and
press, that is, in utter contempt of the rights of
others and in willful disregard of the cumbrous
responsibilities inherent in it, is the eventual self-
destruction of the right and the regression of
human society into a veritable Hobbesian state of
nature where life is short, nasty and brutish.
Therefore, to recognize that there can be no
absolute "unrestraint" in speech is to truly
comprehend the quintessence of freedom in the
marketplace of social thought and action,
genuine freedom being that which is limned by
the freedom of others. If there is freedom of the
press, ought there not also be freedom from the
press? It is in this sense that self-regulation as
distinguished from self-censorship becomes the
ideal mean for, as Mr. Justice Frankfurter has
warned, "[W]ithout . . . a lively sense of
responsibility, a free press may readily become a
powerful instrument of injustice." 49
Lest we be misconstrued, this is not to diminish
nor constrict that space in which expression
freely flourishes and operates. For we have
always strongly maintained, as we do now, that
freedom of expression is man's birthright
constitutionally protected and guaranteed, and
that it has become the singular role of the press
to act as its "defensor fidei" in a democratic
society such as ours. But it is also worth keeping
in mind that the press is the servant, not the
master, of the citizenry, and its freedom does not
carry with it an unrestricted hunting license to
prey on the ordinary citizen. 50
On petitioners' counterclaim for damages, we find
the evidence too meager to sustain any award.
Indeed, private respondent cannot be said to
have instituted the present suit in abuse of the
legal processes and with hostility to the press; or
that he acted maliciously, wantonly, oppressively,
fraudulently and for the sole purpose of harassing
petitioners, thereby entitling the latter to
damages. On the contrary, private respondent
acted within his rights to protect his honor from
what he perceived to be malicious imputations
against him. Proof and motive that the institution
of the action was prompted by a sinister design to
vex and humiliate a person must be clearly and
preponderantly established to entitle the victim
to damages. The law could not have meant to
impose a penalty on the right to litigate, nor
should counsel's fees be awarded every time a
party wins a suit. 51
24 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
For, concluding with the wisdom in Warren v.
Pulitzer Publishing Co. 52
Every man has a right to discuss matters of
public interest. A clergyman with his flock, an
admiral with his fleet, a general with his army, a
judge with his jury, we are, all of us, the subject
of public discussion. The view of our court has
been thus stated: 'It is only in despotisms that
one must speak sub rosa, or in whispers, with
bated breath, around the corner, or in the dark on
a subject touching the common welfare. It is the
brightest jewel in the crown of the law to speak
and maintain the golden mean between
defamation, on one hand, and a healthy and
robust right of free public discussion, on the
other.'
WHEREFORE, the petition is GRANTED. The
Decision of the Court of Appeals of 25 March
1996 and its Resolution of 12 September 1996
denying reconsideration are REVERSED and SET
ASIDE, and the complaint for damages against
petitioners is DISMISSED. Petitioners'
counterclaim for damages is likewise DISMISSED
for lack of merit. No costs. cda
SO ORDERED.
Puno, Martinez and Buena, JJ., concur.
Mendoza, J., concurs in the result.
(Reyes v. Bagatsing, G.R. No. L-65366,
November 09, 1983)
EN BANC
[G.R. No. L-65366. November 9, 1983.]
JOSE B.L. REYES, in behalf of the ANTI-BASES
COALITION (ABC), petitioner, vs. RAMON
BAGATSING, as Mayor of the City of Manila,
respondent.
Lorenzo M. Taada, Jose W. Diokno and Haydee B.
Yorac for petitioner.
The Solicitor General for respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
FREEDOM OF EXPRESSION AND PEACEFUL
ASSEMBLY; LIBERTY TO DISCUSS AND MEET
WITHOUT CENSORSHIP UNLESS THERE IS
CLEAR DANGER OF A SUBSTANTIVE EVIL.
Free speech, like free press, may be identified
with the liberty to discuss publicly and truthfully
any matter of public concern without censorship
or punishment. There is to be then no previous
restraint on the communication of views or
subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or
contempt proceedings unless there be a "clear
and present danger of a substantive evil that the
State has a right to prevent." Freedom of
assembly connotes the right of the people to
meet peaceably for consultation and discussion of
matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is
not to be limited, much less denied, except on a
showing, as is the case with freedom of
expression, of a clear and present danger of a
substantive evil that the state has a right to
prevent.
2. ID.; ID.; ID.; INSEPARABLE RIGHTS THE
LIMITATION OF WHICH IS SUBJECT TO
JUDICIAL EXAMINATION. In Thomas v.
Collins, 323 US 516 (1945), the American
Supreme Court held that it was not by accident or
coincidence that the rights to freedom of speech
and of the press were coupled in a single
guarantee with the rights of the people peaceably
to assemble and to petition the government for
redress of grievances. All these rights, while not
identical, are inseparable. In every case,
therefore, where there is a limitation placed on
the exercise of the right, the judiciary is called
upon to examine the effects of the challenged
governmental actuation. The sole justification for
a limitation on the exercise of this right, so
fundamental to the maintenance of democratic
institutions, is the danger, of a character both
grave and imminent, of a serious evil to public
safety, public morals, public health, of other
legitimate public interest (Cf. Schneider v.
Irvington, 308 US 147 (1939).
3. ID.; ID.; ID.; RIOTOUS CONDUCT MUST BE
AVOIDED IN THE EXERCISE OF THESE
CONSTITUTIONAL RIGHTS. What is
guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much
less preach rebellion under the cloak of dissent.
The Constitution frowns on disorder or tumult
attending a rally or assembly. Resort to force is
ruled out and outbreaks of violence to be
avoided. The utmost calm though is not required.
As pointed out in an early Philippine case, penned
in 1907 to be precise, United States v. Apurado, 7
Phil. 422, "It is rather to be expected that more or
less disorder will mark the public assembly of the
people to protest against grievances whether real
or imaginary, because on such occasions feeling
is always wrought to a high pitch of excitement,
and the greater the grievances and the more
intense the feeling, the less perfect, as a rule, will
be the disciplinary control of the leaders over
their irresponsible followers." It bears repeating
that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of
vandalism must be avoided. To give free rein to
one's destructive urges is to call for
condemnation. It is to make a mockery of the
high estate occupied by intellectual liberty its our
scheme of values.
4. ID.; ID.; ID.; NO VALID OBJECTION EXISTS
ON THE CHOICE OF PLACE FOR THE MARCH
AND RALLY, PROCUREMENT OF LICENSE FOR
USE OF PUBLIC STREETS NOT AN
UNCONSTITUTIONAL ABRIDGEMENT OF
ONE'S CONSTITUTIONAL RIGHT. There can
be no valid reason why a permit should not be
granted for the proposed march and rally starting
from a public park that is the Luneta. Neither can
there be any valid objection to the use of the
streets to the gates of the US Embassy, hardly
two blocks away at the Roxas Boulevard.
Primicias v. Fugoso has resolved any lurking
doubt on the matter. In holding that the then
Mayor Fugoso of the City of Manila should grant a
permit for a public meeting at Plaza Miranda in
Quiapo, this Court categorically declared: "Our
25 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
conclusion finds support in the decision in the
case of Willis Cox vs. State of New Hampshire,
312 U.S. 569. . . ." The Supreme Court of the
United States, in its decision (1941) penned by
Chief Justice Hughes affirming the judgment of
the State Supreme Court, held that "a statute
requiring persons using the public streets for a
parade or procession to procure a special license
therefor from the local authorities is not an
unconstitutional abridgment of the rights of
assembly or of freedom of speech and press,
where, as the statute is construed by the state
courts, the licensing authorities are strictly
limited, in the issuance, to a consideration of the
time, place, and manner of the parade or
procession, with a view to conserving the public
convenience and of affording an opportunity to
provide proper policing, and are not invested with
arbitrary discretion to issue or refuse
license, . . . , " 80 Phil, at 78.
5. ID.; ID.; ID.; FREEDOM OF ACCESS TO
PUBLIC PARKS AND STREETS; PURPOSE OF
APPLICANT DETERMINATIVE OF THE USE
THEREOF. It is settled law that as to public
places, especially so as to parks and streets,
there is freedom of access. Nor is their use
dependent on who is the applicant for the permit,
whether an individual or a group. If it were, then
the freedom of access becomes discriminatory
access, giving rise to an equal protection
question. The principle under American doctrines
was given utterance by Chief Justice Hughes in
these words: "The question, if the rights of free
speech and peaceable assembly are to be
preserved, is not as to the auspices under which
the meeting is held but as to its purpose; not as
to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom
of speech which the Constitution protects" (De
Jorge v. Oregon, 299 US 353, 364 (1937).
6. ID.; ID.; ID.; LICENSING AUTHORITIES ARE
NOT INVESTED WITH ARBITRARY
DISCRETION TO ISSUE OR REFUSE LICENSE.
There could he danger to public peace and
safety if such a gathering were marked by
turbulence. That would deprive it of its peaceful
character. Even then, only the guilty parties
should be held accountable. It is true that the
licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or
not a permit would be granted. White prudence
requires that there be a realistic appraisal not of
what may possibly occur but of what may
probably occur, given all the relevant
circumstances, still the assumption especially
so where the assembly is scheduled for a specific
public place is that the permit must he for the
assembly being held there. The exercise of such a
right, in the language of Justice Roberta, speaking
for the American Supreme Court, is not to be
"abridged on the plea that it may be exercised in
some other place."
7. ID.; ID.; ID.; ID.; NON-EXISTENCE IN CASE
AT BAR A CLEAR AND PRESENT DANGER TO
JUSTIFY A DENIAL OF A PERMIT. While the
general rule is that a permit should recognize the
right of the applicants to hold their assembly at a
public place of their choice, another place may be
designated by the licensing authority if it be
shown that there is a clear and present danger of
a substantive evil if no such change were made.
In the Navarro and the Pagkakaisa decisions, G.R.
No. L-31687, February 26, 1970 and G.R. No.
60294, April 30, 1982, this Court was persuaded
that the clear and present danger test was
satisfied. The present situation is quite different.
Hence the decision reached by the Court. The
mere assertion that subversives may infiltrate the
ranks of the demonstrators does not suffice.
8. ID.; ID.; ID.; ID.; REFUSAL OR
MODIFICATION OF APPLICATION FOR PERMIT
SUBJECT TO CLEAR AND PRESENT DANGER
TEST. The applicants for a permit to hold an
assembly should inform the licensing authority of
the date, the public place where and the time
when it will take place. If it were a private place,
only the consent of the owner or the one entitled
to its legal possession is required. Such
application should be filed well ahead in time to
enable the public official concerned to appraise
whether there may be valid objections to the
grant of the permit or to its grant but at another
public place. It is an indispensable condition to
such refusal or modification that the clear and
present danger test be the standard for the
decision reached. If he is of the view that there is
such an imminent sad grave danger of a
substantive evil, the applicants must be heard on
the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper
judicial authority.
9. ID.; ID.; ID.; RESPECT AND DEFERENCE
ACCORDED TO THESE PREFERRED RIGHTS.
Free speech and peaceable assembly, along
with other intellectual freedom, are highly ranked
in our scheme of constitutional values. It cannot
be too strongly stressed that on the judiciary,
even more so than on the other departments
rests the grave and delicate responsibility of
assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes "as
the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of
suds rights, enjoying as they do precedence and
primacy.
10. ID.; ID.; ID.; VIOLATION OF ORDINANCE
7295 NEED NOT BE PASSED UPON. The
issue of the applicability of Ordinance No. 7295 of
the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a
radius of five hundred (500) feet from any foreign
mission or chancery; and for other purposes
which finds support in Article 22 of the Vienna
Convention on Diplomatic Relations need not be
passed upon. There was no showing that the
distance between the chancery and the embassy
gate is less than 500 feet. Even if it could be
shown that such a condition is satisfied, it does
not follow that respondent Mayor could legally act
the way he did. The validity of his denial of the
permit sought could still be challenged. It could
be argued that a case of unconstitutional
application of such ordinance to the exercise of
the right of peaceable assembly presents itself.
As in this case there was no proof that the
26 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
distance is less than 500 feet, the need to pass
on that issue was obviated.
TEEHANKEE, J., concurring:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
FREEDOM OF EXPRESSION AND PEACEFUL
ASSEMBLY; DOCTRINE OF PRIMICIAS vz.
FUGOSO. The Chief Justice's opinion of the
Court reaffirms the doctrine of Primicias vs.
Fugoso, 80 Phil. 71 that "the right to freedom of
speech and to peacefully assemble and petition
the government for redress of grievances are
fundamental personal rights of the people
recognized and guaranteed by the constitutions
of democratic countries" and that the city or town
mayors are not conferred "the power to refuse to
grant the permit, but only the discretion, in
issuing the permit, to determine or specify the
streets or public places where the parade or
procession may pass or the meeting may be
held."
2. ID.; ID.; ID.; CLEAR AND PRESENT
DANGER RULE, THE SOLE JUSTIFICATION
FOR A LIMITATION ON THE EXERCISE
THEREOF. The procedure for the securing of
such permits for peaceable assembly is succinctly
set forth in paragraph 8 of the Court's opinion,
with the injunction that "the presumption must be
to incline the weight of the scales of justice on
the side of such rights, enjoying as they do,
precedence and primacy." The exception of the
clear and present danger rule, which alone would
warrant a limitation of these fundamental rights
is therein restated in paragraph 1, thus: "The sole
justification for a limitation on the exercise of this
right, so fundamental to the maintenance of
democratic institutions, is the danger, of a
character both grave and imminent, of a serious
evil to public safety, public morals, public health,
or any other legitimate public interest."
3. ID.; ID.; ID.; ID.; BEFORE DENIAL OF
PERMIT, LICENSING AUTHORITY MUST SHOW
EXISTENCE OF REASONABLE GROUND TO
BELIEVE THAT THE DANGER APPREHENDED
IS IMMINENT. The burden to show the
existence of grave and imminent danger that
would justify adverse action on the application
lies on the mayor as the licensing authority. There
must be objective and convincing, not subjective
or conjectural, proof of the existence of such
clear and present danger. As stated in the Court's
Resolution of October 25, 1983, which granted
the mandatory injunction as prayed for, "It is
essential for the validity of a denial of a permit
which amounts to a previous restraint or
censorship that the licensing authority does not
rely solely on his own appraisal of what public
welfare, peace or safety may require. To justify
such a limitation, there must be proof of such
weight and sufficiency to satisfy the clear and
present danger test. The possibility that
subversives may infiltrate the ranks of the
demonstrators is not enough."
4. ID.; ID.; ID.; ASSEMBLY LEADERS SHOULD
TAKE NECESSARY MEASURES TO ENSURE
PEACEFUL MARCH AND ASSEMBLY;
ISOLATED ACTS OF DISTURBANCE SHOULD
NOT CHARACTERIZE ASSEMBLY AS
TUMULTUOUS. The leaders of the peaceable
assembly should take all the necessary measure"
to ensure a peaceful much and assembly and to
avoid the possibility of infiltrators and
troublemakers disrupting the same,
concommitantly with the duty of the police to
extend protection to the participants "staying at a
discreet distance, but ever ready and alert to
perform their duty." But should any disorderly
conduct or incidents occur, whether provoked or
otherwise, it is well to recall former Chief Justice
Ricardo Paras` injunction in his concurring opinion
in Fugoso, citing the 1907 case of U.S. vs.
Apurado, 7 Phil. 422, 426, per Carson, J. that such
instances of "disorderly conduct by individual
members of a crowd (be not seized) as an excuse
to characterize the assembly as a seditious and
tumultuous rising against the authorities" and
render illusory the right of peaceful assembly.
PLANA, J., separate opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
FREEDOM OF EXPRESSION AND PEACEFUL
ASSEMBLY; THE ORDINANCE BEING
UNCONSTITUTIONAL CANNOT BE VALIDLY
INVOKED, THE DISTANCE OF THE CHANCERY
FROM THE SITUS OF THE RALLY BEING
IMMATERIAL. In my view, without saying that
the Ordinance is obnoxious per se to the
constitution, it cannot be validly invoked
whenever its application would collide with a
constitutionally guaranteed right such as freedom
of assembly and/or expression, as in the case at
bar, regardless of whether the chancery of any
foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.
DECISION
FERNANDO, C.J p:
This Court, in this case of first impression, at least
as to some aspects, is called upon to delineate
the boundaries of the protected area of the
cognate rights to free speech and peaceable
assembly, 1 against an alleged intrusion by
respondent Mayor Ramon Bagatsing. Petitioner,
retired Justice J.B.L. Reyes, on behalf of the Anti-
Bases Coalition, sought a permit from the City of
Manila to hold a peaceful march and rally on
October 26, 1983 from 2:00 to 5:00 in the
afternoon, starting from the Luneta, a public park,
to the gates of the United States Embassy, hardly
two blocks away. Once there, and in an open
space of public property, a short program would
be held. 2 During the course of the oral
argument, 3 it was stated that after the delivery
of two brief speeches, a petition based on the
resolution adopted on the last day by the
International Conference for General
Disarmament, World Peace and the Removal of All
Foreign Military Bases held in Manila, would be
presented to a representative of the Embassy or
any of its personnel who may be there so that it
may be delivered to the United States
Ambassador. The march would be attended by
the local and foreign participants of such
conference. There was likewise an assurance in
the petition that in the exercise of the
constitutional rights to free speech and assembly,
all the necessary steps would be taken by it "to
ensure a peaceful march and rally." 4
The filing of this suit for mandamus with
alternative prayer for writ of preliminary
mandatory injunction on October 20, 1983 was
due to the fact that as of that date, petitioner had
27 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
not been informed of any action taken on his
request on behalf of the organization to hold a
rally. On October 25, 1983, the answer of
respondent Mayor was filed on his behalf by
Assistant Solicitor General Eduardo G.
Montenegro. 5 It turned out that on October 19,
such permit was denied. Petitioner was unaware
of such a fact as the denial was sent by ordinary
mail. The reason for refusing a permit was due to
"police intelligence reports which strongly militate
against the advisability of issuing such permit at
this time and at the place applied for." 6 To be
more specific, reference was made to "persistent
intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or
disrupt any assembly or congregations where a
large number of people is expected to attend." 7
Respondent Mayor suggested, however, in
accordance with the recommendation of the
police authorities, that "a permit may be issued
for the rally if it is to be held at the Rizal Coliseum
or any other enclosed area where the safety of
the participants themselves and the general
public may be ensured." 8
The oral argument was heard on October 25,
1983, the very same day the answer was filed.
The Court then deliberated on the matter. That
same afternoon, a minute resolution was issued
by the Court granting the mandatory injunction
prayed for on the ground that there was no
showing of the existence of a clear and present
danger of a substantive evil that could justify the
denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice
Aquino on the ground that the holding of a rally in
front of the US Embassy would be violative of
Ordinance No. 7295 of the City of Manila. The last
sentence of such minute resolution reads: "This
resolution is without prejudice to a more
extended opinion." 9 Hence this detailed
exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to
protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the
denial of a permit. The Constitution is quite
explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of
the people peaceably to assemble and petition
the Government for redress of grievances." 10
Free speech, like free press, may be identified
with the liberty to discuss publicly and truthfully
any matter of public concern without censorship
or punishment. 11 There is to be then no previous
restraint on the communication of views or
subsequent liability whether in libel suits, 12
prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless
there be a "clear and present danger of a
substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the
right of the people to meet peaceably for
consultation and discussion of matters of public
concern. 17 It is entitled to be accorded the
utmost deference and respect. It is not to be
limited, much less denied, except on a showing,
as is the case with freedom of expression, of a
clear and present danger of a substantive evil
that the state has a right to prevent. 18 Even
prior to the 1935 Constitution, Justice Malcolm
had occasion to stress that it is a necessary
consequence of our republican institutions and
complements the right of free speech. 19 To
paraphrase the opinion of Justice Rutledge,
speaking for the majority of the American
Supreme Court in Thomas v. Collins, 20 it was not
by accident or coincidence that the rights to
freedom of speech and of the press were coupled
in a single guarantee with the rights of the people
peaceably to assemble and to petition the
government for redress of grievances. All these
rights, while not identical, are inseparable. In
every case, therefore, where there is a limitation
placed on the exercise of this right, the judiciary
is called upon to examine the effects of the
challenged governmental actuation. The sole
justification for a limitation on the exercise of this
right, so fundamental to the maintenance of
democratic institutions, is the danger, of a
character both grave and imminent, of a serious
evil to public safety, public morals, public health,
or any other legitimate public interest. 21
2. Nowhere is the rationale that underlies the
freedom of expression and peaceable assembly
better expressed than in this excerpt from an
opinion of Justice Frankfurter: "It must never be
forgotten, however, that the Bill of Rights was the
child of the Enlightenment. Back of the guaranty
of free speech lay faith in the power of an appeal
to reason by all the peaceful means for gaining
access to the mind. It was in order to avert force
and explosions due to restrictions upon rational
modes of communication that the guaranty of
free speech was given a generous scope. But
utterance in a context of violence can lose its
significance as an appeal to reason and become
part of an instrument of force. Such utterance
was not meant to be sheltered by the
Constitution." 22 What was rightfully stressed is
the abandonment of reason, the utterance,
whether verbal or printed, being in a context of
violence. It must always be remembered that this
right likewise provides for a safety valve, allowing
parties the opportunity to give vent to their
views, even if contrary to the prevailing climate
of opinion. For if the peaceful means of
communication cannot be availed of, resort to
non-peaceful means may be the only alternative.
Nor is this the sole reason for the expression of
dissent. It means more than just the right to be
heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may
lie in the fact that there may be something worth
hearing from the dissenter. That is to ensure a
true ferment of ideas. There are, of course, well-
defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the
name of protest, much less preach rebellion
under the cloak of dissent. The Constitution
frowns on disorder or tumult attending a rally or
assembly. Resort to force is ruled out and
outbreaks of violence to be avoided. The utmost
calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be
precise, United States v. Apurado: 23 "It is rather
to be expected that more or less disorder will
mark the public assembly of the people to protest
against grievances whether real or imaginary,
because on such occasions feeling is always
wrought to a high pitch of excitement, and the
greater the grievance and the more intense the
28 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their
irresponsible followers." 24 It bears repeating that
for the constitutional right to be invoked, riotous
conduct, injury to property, and acts of vandalism
must be avoided. To give free rein to one's
destructive urges is to call for condemnation. It is
to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the
existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the
place where the peace rally would start. The
Philippines is committed to the view expressed in
the plurality opinion, of 1939 vintage, of Justice
Roberts in Hague v. CIO: 25 "Whenever the title of
streets and parks may rest, they have
immemorially been held in trust for the use of the
public and, time out of mind, have been used for
purposes of assembly, communicating thoughts
between citizens, and discussing public
questions. Such use of the streets and public
places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of
citizens. The privilege of a citizen of the United
States to use the streets and parks for
communication of views on national questions
may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in
subordination to the general comfort and
convenience, and in consonance with peace and
good order; but it must not, in the guise of
regulation, be abridged or denied." 26 The above
excerpt was quoted with approval in Primicias v.
Fugoso. 27 Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, 28 a
1915 decision, where this Court categorically
affirmed that plazas or parks and streets are
outside the commerce of man and thus nullified a
contract that leased Plaza Soledad of plaintiff-
municipality. Reference was made to such plaza
"being a promenade for public use," 29 which
certainly is not the only purpose that it could
serve. To repeat, there can be no valid reason
why a permit should not be granted for the
proposed march and rally starting from a public
park that is the Luneta.
4. Neither can there be any valid objection to the
use of the streets to the gates of the US Embassy,
hardly two blocks away at the Roxas Boulevard.
Primicias v. Fugoso has resolved any lurking
doubt on the matter. In holding that the then
Mayor Fugoso of the City of Manila should grant a
permit for a public meeting at Plaza Miranda in
Quiapo, this Court categorically declared: "Our
conclusion finds support in the decision in the
case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that case, the statute of New
Hampshire P. L. chap. 145, section 2, providing
that `no parade or procession upon any ground
abutting thereon, shall be permitted unless a
special license therefor shall first be obtained
from the selectmen of the town or from licensing
committee,' was construed by the Supreme Court
of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to
grant the license, and held valid. And the
Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes
affirming the judgment of the State Supreme
Court, held that `a statute requiring persons
using the public streets for a parade or
procession to procure a special license therefor
from the local authorities is not an
unconstitutional abridgment of the rights of
assembly or of freedom of speech and press,
where, as the statute is construed by the state
courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a
consideration of the time, place, and manner of
the parade or procession, with a view to
conserving the public convenience and of
affording an opportunity to provide proper
policing, and are not invested with arbitrary
discretion to issue or refuse license, . . .'" 30 Nor
should the point made by Chief Justice Hughes in
a subsequent portion of the opinion be ignored.
"Civil liberties, as guaranteed by the Constitution,
imply the existence of an organized society
maintaining public order without which liberty
itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose
regulations in order to assure the safety and
convenience of the people in the use of public
highways has never been regarded as
inconsistent with civil liberties but rather as one
of the means of safeguarding the good order
upon which they ultimately depend. The control
of travel on the streets of cities is the most
familiar illustration of this recognition of social
need. Where a restriction of the use of highways
in that relation is desired to promote the public
convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some
civil right which in other circumstances would be
entitled to protection." 31
5. There is a novel aspect to this case. If the rally
were confined to Luneta, no question, as noted,
would have arisen. So, too, if the march would
end at another park. As previously mentioned
though, there would be a short program upon
reaching the public space between the two gates
of the United States Embassy at Roxas Boulevard.
That would be followed by the handing over of a
petition based on the resolution adopted at the
closing session of the Anti-Bases Coalition. The
Philippines is a signatory of the Vienna
Convention on Diplomatic Relations adopted in
1961. It was concurred in by the then Philippine
Senate on May 3, 1965 and the instrument of
ratification was signed by the President on
October 11, 1965, and was thereafter deposited
with the Secretary General of the United Nations
on November 15. As of that date then, it was
binding on the Philippines. The second paragraph
of its Article 22 reads: "2. The receiving State is
under a special duty to take appropriate steps to
protect the premises of the mission against any
intrusion or damage and to prevent any
disturbance of the peace of the mission or
impairment of its dignity." 32 The Constitution
"adopts the generally accepted principles of
international law as part of the law of the
land, . . ." 33 To the extent that the Vienna
Convention is a restatement of the generally
accepted principles of international law, it should
be a part of the law of the land. 34 That being the
case, if there were a clear and present danger of
any intrusion or damage, or disturbance of the
peace of the mission, or impairment of its dignity,
there would be a justification for the denial of the
permit insofar as the terminal point would be the
Embassy. Moreover, respondent Mayor relied on
29 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred
(500) feet from any foreign mission or chancery;
and for other purposes. Unless the ordinance is
nullified, or declared ultra vires, its invocation as
a defense is understandable but not decisive, in
view of the primacy accorded the constitutional
rights of free speech and peaceable assembly.
Even if shown then to be applicable, that question
still confronts this Court.
6. There is merit to the observation that except
as to the novel aspects of a litigation, the
judgment must be confined within the limits of
previous decisions. The law declared on past
occasions is, on the whole, a safe guide. So it has
been here. Hence, as noted, on the afternoon of
the hearing, October 25, 1983, this Court issued
the minute resolution granting the mandatory
injunction allowing the proposed march and rally
scheduled for the next day. That conclusion was
inevitable in the absence of a clear and present
danger of a substantive evil to a legitimate public
interest. There was no justification then to deny
the exercise of the constitutional rights of free
speech and peaceable assembly. These rights are
assured by our Constitution and the Universal
Declaration of Human Rights. 35 The participants
to such assembly, composed primarily of those in
attendance at the International Conference for
General Disarmament, World Peace and the
Removal of All Foreign Military Bases would start
from the Luneta, proceeding through Roxas
Boulevard to the gates of the United States
Embassy located at the same street. To repeat, it
is settled law that as to public places, especially
so as to parks and streets, there is freedom of
access. Nor is their use dependent on who is the
applicant for the permit, whether an individual or
a group. If it were, then the freedom of access
becomes discriminatory access, giving rise to an
equal protection question. The principle under
American doctrines was given utterance by Chief
Justice Hughes in these words: "The question, if
the rights of free speech and peaceable assembly
are to be preserved, is not as to the auspices
under which the meeting is held but as to its
purpose; not as to the relations of the speakers,
but whether their utterances transcend the
bounds of the freedom of speech which the
Constitution protects." 36 There could be danger
to public peace and safety if such a gathering
were marked by turbulence. That would deprive it
of its peaceful character. Even then, only the
guilty parties should be held accountable. It is
true that the licensing official, here respondent
Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is
not, however, unfettered discretion. While
prudence requires that there be a realistic
appraisal not of what may possibly occur but of
what may probably occur, given all the relevant
circumstances, still the assumption especially
so where the assembly is scheduled for a specific
public place is that the permit must be for the
assembly being held there. The exercise of such a
right, in the language of Justice Roberts, speaking
for the American Supreme Court, is not to be
"abridged on the plea that it may be exercised in
some other place." 37

7. In fairness to respondent Mayor, he acted on
the belief that Navarro v. Villegas 38 and
Pagkakaisa ng Manggagawang Pilipino (PMP) v.
Bagatsing, 39 called for application. While the
general rule is that a permit should recognize the
right of the applicants to hold their assembly at a
public place of their choice, another place may be
designated by the licensing authority if it be
shown that there is a clear and present danger of
a substantive evil if no such change were made.
In the Navarro and the Pagkakaisa decisions, this
Court was persuaded that the clear and present
danger test was satisfied. The present situation is
quite different. Hence the decision reached by the
Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not
suffice. Not that it should be overlooked. There
was in this case, however, the assurance of
General Narciso Cabrera, Superintendent,
Western Police District, Metropolitan Police Force,
that the police force is in a position to cope with
such emergency should it arise. That is to comply
with its duty to extend protection to the
participants of such peaceable assembly. Also
from him came the commendable admission that
there were at least five previous demonstrations
at the Bayview Hotel Area and Plaza Ferguson in
front of the United States Embassy where no
untoward event occurred. It was made clear by
petitioner, through counsel, that no act offensive
to the dignity of the United States Mission in the
Philippines would take place and that, as
mentioned at the outset of this opinion, "all the
necessary steps would be taken by it `to ensure a
peaceful march and rally.'" 40 Assistant Solicitor
General Montenegro expressed the view that the
presence of policemen may in itself be a
provocation. It is a sufficient answer that they
should stay at a discreet distance, but ever ready
and alert to cope with any contingency. There is
no need to repeat what was pointed out by Chief
Justice Hughes in Cox that precisely, it is the duty
of the city authorities to provide the proper police
protection to those exercising their right to
peaceable assembly and freedom of expression.
8. By way of a summary. The applicants for a
permit to hold an assembly should inform the
licensing authority of the date, the public place
where and the time when it will take place. If it
were a private place, only the consent of the
owner or the one entitled to its legal possession is
required. Such application should be filed well
ahead in time to enable the public official
concerned to appraise whether there may be
valid objections to the grant of the permit or to its
grant but at another public place. It is an
indispensable condition to such refusal or
modification that the clear and present danger
test be the standard for the decision reached. If
he is of the view that there is such an imminent
and grave danger of a substantive evil, the
applicants must be heard on the matter.
Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority.
Free speech and peaceable assembly, along with
the other intellectual freedoms, are highly ranked
in our scheme of constitutional values. It cannot
30 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
be too strongly stressed that on the judiciary,
even more so than on the other departments
rests the grave and delicate responsibility of
assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes "as
the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of
such rights, enjoying as they do precedence and
primacy. Clearly then, to the extent that there
may be inconsistencies between this resolution
and that of Navarro v. Villegas, that case is pro
tanto modified. So it was made clear in the
original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the
applicability of Ordinance No. 7295 of the City of
Manila prohibiting the holding or staging of rallies
or demonstrations within a radius of five hundred
(500) feet from any foreign mission or chancery;
and for other purposes. It is to be admitted that it
finds support in the previously quoted Article 22
of the Vienna Convention on Diplomatic Relations.
There was no showing, however, that the
distance between the chancery and the embassy
gate is less than 500 feet. Even if it could be
shown that such a condition is satisfied, it does
not follow that respondent Mayor could legally act
the way he did. The validity of his denial of the
permit sought could still be challenged. It could
be argued that a case of unconstitutional
application of such ordinance to the exercise of
the right of peaceable assembly presents itself.
As in this case there was no proof that the
distance is less than 500 feet, the need to pass
on that issue was obviated. Should it come, then
the qualification and observation of Justices
Makasiar and Plana certainly cannot be
summarily brushed aside. The high estate
accorded the rights to free speech and peaceable
assembly demands nothing less.
10. Ordinarily, the remedy in cases of this
character is to set aside the denial or the
modification of the permit sought and order the
respondent official to grant it. Nonetheless, as
there was urgency in this case, the proposed
march and rally being scheduled for the next day
after the hearing, this Court, in the exercise of its
conceded authority, granted the mandatory
injunction in the resolution of October 25, 1983. It
may be noted that the peaceful character of the
peace march and rally on October 26 was not
marred by any untoward incident. So it has been
in other assemblies held elsewhere. It is quite
reassuring such that both on the part of the
national government and the citizens, reason and
moderation have prevailed. That is as it should
be.
WHEREFORE, the mandatory injunction prayed
for is granted. No costs.
Concepcion, Jr., Guerrero, Melencio-Herrera,
Escolin, Relova and Gutierrez, Jr., JJ., concur.
Abad Santos, J., to add anything to the learned
opinion of the Chief Justice is like bringing coal to
Newcastle. I just want to state for the record that
I voted for the issuance ex-parte of a preliminary
mandatory injunction.

De Castro, J., is on sick leave.
(Pita v. Court of Appeals, G.R. No. 80806,
October 05, 1989)
EN BANC
[G.R. No. 80806. October 5, 1989.]
LEO PITA, doing business under the name and
style of PINOY PLAYBOY, petitioner, vs. THE
COURT OF APPEALS, RAMON BAGATSING, and
NARCISO CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private
respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; OBSCENITY; TEST
FOR DETERMINING ITS EXISTENCE. In
Gonzalez v. Kalaw Katigbak, the Court, following
trends in the United States, adopted the test:
"Whether to the average person, applying
contemporary standards, the dominant theme of
the material taken as a whole appeals to prurient
interest." Kalaw-Katigbak represented a marked
departure from Kottinger in the sense that it
measured obscenity in terms of the "dominant
theme" of the work rather than isolated
passages, which were central to Kottinger
(although both cases are agreed that
"contemporary community standards" are the
final arbiters of what is "obscene"). Kalaw-
Katigbak undertook moreover to make the
determination of obscenity essentially a judicial
question and as a consequence, to temper the
wide discretion Kottinger had given unto law
enforcers.
2. ID.; ID.; LACK OF UNIFORMITY IN
AMERICAN JURISPRUDENCE AS TO WHAT
CONSTITUTES "OBSCENITY". It is significant
that in the United States, constitutional law on
obscenity continues to journey from development
to development, which, states one authoritative
commentator (with ample sarcasm), has been as
"unstable as it is unintelligible." The lack of
uniformity in American jurisprudence as to what
constitutes "obscenity" has been attributed to the
reluctance of the courts to recognize the
constitutional dimension of the problem.
Apparently, the courts have assumed that
"obscenity" is not included in the guaranty of free
speech, an assumption that, as we averred, has
allowed a climate of opinions among magistrates
predicated upon arbitrary, if vague theories of
what is acceptable to society. And "[t]here is little
likelihood," says Tribe, "that this development has
reached a state of rest, or that it will ever do so
until the Court recognizes that obscene speech is
speech nonetheless, although it is subject as in
all speech to regulation in the interests of
[society as a whole] but not in the interest of a
uniform vision of how human sexuality should be
regarded and portrayed."
3. ID.; ID.; QUESTION AS TO ITS TRUE
PERCEPTION, FAR FROM BEING A SETTLED
MATTER. In the case at bar, there is no
challenge on the right of the State, in the
legitimate exercise of police power, to suppress
smut provided it is smut. For obvious reasons,
smut is not smut simply because one insists it is
smut. So is it equally evident that individual
31 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
tastes develop, adapt to wide-ranging influences,
and keep in step with the rapid advance of
civilization. What shocked our forebears, say, five
decades ago, is not necessarily repulsive to the
present generation. James Joyce and D.H.
Lawrence were censored in the thirties yet their
works are considered important literature today.
Goya's La Maja desnuda was once banned from
public exhibition but now adorns the world's most
prestigious museums. But neither should we say
that "obscenity" is a bare (no pun intended)
matter of opinion. As we said earlier, it is the
divergent perceptions of men and women that
have probably compounded the problem rather
than resolved it. What the Court is impressing,
plainly and simply, is that the question is not, and
has not been, an easy one to answer, as it is far
from being a settled matter. We share Tribe's
disappointment over the discouraging trend in
American decisional law on obscenity as well as
his pessimism on whether or not an "acceptable"
solution is in sight.
4. ID.; BILL OF RIGHTS; FREEDOM OF
SPEECH; "IMMORAL" LORE OR LITERATURE,
WITHIN ITS AMBIT; STATE INTERFERENCE
AND ACTION DRAWN BY A "CLEAR AND
PRESENT DANGER." Undoubtedly, "immoral"
lore or literature comes within the ambit of free
expression, although not its protection. In free
expression cases, this Court has consistently
been on the side of the exercise of the right,
barring a "clear and present danger" that would
warrant State interference and action. But, so we
asserted in Reyes v. Bagatsing, "the burden to
show the existence of grave and imminent
danger that would justify adverse action . . . lies
on the . . . authorit[ies]." "There must be
objective and convincing, not subjective or
conjectural, proof of the existence of such clear
and present danger." "It is essential for the
validity of . . . previous restraint or censorship
that the . . . authority does not rely solely on his
own appraisal of what the public welfare, peace
or safety may require." "To justify such a
limitation, there must be proof of such weight and
sufficiency to satisfy the clear and present danger
test."
5. ID.; ID.; ID.; BURDEN IS ON THE STATE TO
DEMONSTRATE EXISTENCE OF A DANGER TO
JUSTIFY BAN OF THE SPEECH. As so
strongly stressed in Bagatsing, a case involving
the delivery of a political speech, the
presumption is that the speech may validly be
said. The burden is on the State to demonstrate
the existence of a danger, a danger that must not
only be (1) clear but also, (2) present, to justify
State action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no
choice. However, if it acts notwithstanding that
(absence of evidence of a clear and present
danger), it must come to terms with, and be held
accountable for, due process. The Court is not
convinced that the private respondents have
shown the required proof to justify a ban and to
warrant confiscation of the literature for which
mandatory injunction had been sought below.
First of all, they were not possessed of a lawful
court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry
out a search and seizure, by way of a search
warrant.

6. ID.; ID.; ID.; SEIZURE OF PROPERTY IN
DISREGARD OF DUE PROCESS, NOT
LICENSED ALTHOUGH SANCTIONED BY
"POLICE POWER." The fact that the former
respondent Mayor's act was sanctioned by "police
power" is no license to seize property in disregard
of due process. In Philippine Service Exporters,
Inc. v. Drilon, We defined police power as "state
authority to enact legislation that may interfere
with personal liberty or property in order to
promote the general welfare." Presidential
Decrees Nos. 960 and 969 are, arguably, police
power measures, but they are not, by
themselves, authorities for high-handed acts.
They do not exempt our law enforcers, in carrying
out the decree of the twin presidential issuances
(Mr. Marcos'), from the commandments of the
Constitution, the right to due process of law and
the right against unreasonable searches and
seizures, specifically. Significantly, the Decrees
themselves lay down procedures for
implementation.
7. ID.; ID.; SEARCHES AND SEIZURES
BECOME UNREASONABLE AND SUBJECT TO
CHALLENGE IF NOT DONE THROUGH A
JUDICIAL WARRANT. It is basic that searches
and seizures may be done only through a judicial
warrant, otherwise, they become unreasonable
and subject to challenge. In Burgos v. Chief of
Staff AFP, We countermanded the orders of the
Regional Trial Court authorizing the search of the
premises of We Forum and Metropolitan Mail, two
Metro Manila dailies, by reason of a defective
warrant. We have greater reason here to
reprobate the questioned raid, in the complete
absence of a warrant, valid or invalid. The fact
that the instant case involves an obscenity rap
makes it no different from Burgos, a political
case, because, and as we have indicated, speech
is speech, whether political or "obscene".
8. ID.; ID.; WARRANTLESS SEARCHES
WARRANTED IF EXECUTED INCIDENT TO A
LAWFUL ARREST. The Court is not ruling out
warrantless searches as provided in the Rules of
Court (1964 rev.) (the Rules then prevailing), but
as the provision itself suggests, the search must
have been an incident to a lawful arrest, and the
arrest must be on account of a crime committed.
Here, no party has been charged, nor are such
charges being readied against any party, under
Article 201, as amended, of the Revised Penal
Code.
9. ID.; ID.; PROCUREMENT OF A SEARCH
WARRANT; PROPER PROCEDURE IN AN
OBSCENITY RAP; DEFENSE NOT DEEMED
FORECLOSED. 1. The authorities must apply
for the issuance of a search warrant from a judge,
if in their opinion, an obscenity rap is in order; 2.
The authorities must convince the court that the
materials sought to be seized are "obscene", and
pose a clear and present danger of an evil
substantive enough to warrant State interference
and action; 3. The judge must determine whether
or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis
and on His Honor's sound discretion. 4. If, in the
opinion of the court, probable cause exists, it may
issue the search warrant prayed for; 5. The
proper suit is then brought in the court under
32 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Article 201 of the Revised Penal Code; 6. Any
conviction is subject to appeal. The appellate
court may assess whether or not the properties
seized are indeed "obscene". These do not
foreclose, however, defenses under the
Constitution or applicable statutes, or remedies
against abuse of official power under the Civil
Code or the Revised Penal Code.
DECISION
SARMIENTO, J p:
The petitioner, publisher of Pinoy Playboy, a
"men's magazine", seeks the review of the
decision of the Court of Appeals, 1 rejecting his
appeal from the decision of the Regional Trial
Court, dismissing his complaint for injunctive
relief. He invokes, in particular, the guaranty
against unreasonable searches and seizures of
the Constitution, as well as its prohibition against
deprivation of property without due process of
law. Cdpr
There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-
Smut Campaign initiated by the Mayor of the City
of Manila, Ramon D. Bagatsing, elements of the
Special Anti-Narcotics Group, Auxilliary Services
Bureau, Western Police District, INP of the
Metropolitan Police Force of Manila, seized and
confiscated from dealers, distributors, newsstand
owners and peddlers along Manila sidewalks,
magazines, publications and other reading
materials believed to be obscene, pornographic
and indecent and later burned the seized
materials in public at the University belt along
C.M. Recto Avenue, Manila, in the presence of
Mayor Bagatsing and several officers and
members of various student organizations.
Among the publications seized, and later burned,
was "Pinoy Playboy" magazines published and co-
edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for
injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing
and Narcisco Cabrera, as superintendent of
Western Police District of the City of Manila,
seeking to enjoin and or restrain said defendants
and their agents from confiscating plaintiffs
magazines or from otherwise preventing the sale
or circulation thereof claiming that the magazine
is a decent, artistic and educational magazine
which is not per se obscene, and that the
publication is protected by the Constitutional
guarantees of freedom of speech and of the
press.
By order dated December 8, 1983 the Court set
the hearing on the petition for preliminary
injunction on December 14, 1983 and ordered the
defendants to show cause not later than
December 13, 1983 why the writ prayed for
should not be granted.
On December 12, 1983, plaintiff filed an Urgent
Motion for issuance of a temporary restraining
order against indiscriminate seizure, confiscation
and burning of plaintiffs "Pinoy Playboy"
Magazines, pending hearing on the petition for
preliminary injunction in view of Mayor
Bagatsing's pronouncement to continue the Anti-
Smut Campaign. The Court granted the
temporary restraining order on December 14,
1983. LLphil
In his Answer and Opposition filed on December
27, 1983 defendant Mayor Bagatsing admitted
the confiscation and burning of obscence reading
materials on December 1 and 3, 1983, but
claimed that the said materials were voluntarily
surrendered by the vendors to the police
authorities, and that the said confiscation and
seizure was (sic) undertaken pursuant to P.D. No.
960, as amended by P.D. No. 969, which
amended Article 201 of the Revised Penal Code.
In opposing the plaintiff's application for a writ of
preliminary injunction, defendant pointed out that
in that anti-smut campaign conducted on
December 1 and 3, 1983, the materials
confiscated belonged to the magazine stand
owners and peddlers who voluntarily surrendered
their reading materials, and that the plaintiff's
establishment was not raided.
The other defendant, WPD Superintendent,
Narcisco Cabrera, filed no answer.
On January 5, 1984, plaintiff filed his
Memorandum in support of the issuance of the
writ of preliminary injunction, raising the issue as
to "whether or not the defendants. and or their
agents can without a court order confiscate or
seize plaintiff's magazine before any judicial
finding is made on whether said magazine is
obscene or not"
The restraining order issued on December 14,
1983 having lapsed on January 3, 1984, the
plaintiff filed an urgent motion for issuance of
another restraining order, which was opposed by
defendant on the ground that issuance of a
second restraining order would violate the
Resolution of the Supreme Court dated January
11, 1983, providing for the Interim Rules Relative
to the Implementation of Batas Pambansa Blg.
129, which provides that a temporary restraining
order shall be effective only for twenty days from
date of its issuance.
On January 9, 1984 defendant filed his Comment
and or Rejoinder Memorandum in support of his
opposition to the issuance of a writ of preliminary
injunction.
On January 11, 1984, the trial court issued an
Order setting the case for hearing on January 16,
1984 "for the parties to adduce evidence on the
question of whether the publication 'Pinoy
Playboy Magazine' alleged (sic) seized,
confiscated and or burned by the defendants, are
obscence per se or not"
On January 16, 1984, the Court issued an order
granting plaintiff's motion to be given three days
"to file a reply to defendants' opposition dated
January 9, 1984, serving a copy thereof to the
counsel for the defendants, who may file a
rejoinder within the same period from receipt,
after which the issue of Preliminary Injunction
shall be resolved"
33 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Plaintiff's supplemental Memorandum was filed
on January 18 1984. Defendant filed his Comment
on plaintiff's supplemental Memorandum on
January 20, 1984, and plaintiff filed his "Reply-
Memorandum" to defendants' Comment on
January 25, 1984.
On February 3, 1984, the trial court promulgated
the Order appealed from denying the motion for a
writ of preliminary injunction, and dismissing the
case for lack of merit. 2
The Appellate Court dismissed the appeal upon
the grounds, among other things, as follows:
We cannot quarrel with the basic postulate
suggested by appellant that seizure of allegedly
obscene publications or materials deserves close
scrutiny because of the constitutional guarantee
protecting the right to express oneself in print
(Sec. 9, Art. IV), and the protection afforded by
the constitution against unreasonable searches
and seizure (Sec. 3, Art. IV). It must be equally
conceded, however, that freedom of the press is
not without restraint, as the state has the right to
protect society from pornographic literature that
is offensive to public morals, as indeed we have
laws punishing the author, publishers and sellers
of obscene publications (Sec. 1, Art. 201, Revised
Penal Code, as amended by P.D. No. 960 and P.D.
No. 969). Also well settled is the rule that the
right against unreasonable searches and seizures
recognizes certain exceptions, as when there is
consent to the search or seizure, (People vs.
Malesugui, 63 Phil. 22) or search is an incident to
an arrest, (People vs. Veloso, 48 Phil. 169; Alvero
vs. Dizon, 76 Phil. 637) or is conducted in a
vehicle or movable structure (See Papa vs.
Magno, 22 SCRA 857). 3
The petitioner now ascribes to the respondent
court the following errors:
1. The Court of Appeals erred in affirming the
decision of the trial court and, in effect, holding
that the police officers could without any court
warrant or order seize and confiscate petitioner's
magazines on the basis simply of their
determination that they are obscene.
2. The Court of Appeals erred in affirming the
decision of the trial court and, in effect, holding
that the trial court could dismiss the case on its
merits without any hearing thereon when what
was submitted to it for resolution was merely the
application of petitioner for the writ of preliminary
injunction. 4
The Court states at the outset that it is not the
first time that it is being asked to pronounce what
"obscene" means or what makes for an obscene
or pornographic literature. Early on, in People vs.
Kottinger, 5 the Court laid down the test, in
determining the existence of obscenity, as
follows: "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."
6 "Another test," so Kottinger further declares, "is
that which shocks the ordinary and common
sense of men as an indecency." 7 Kottinger
hastened to say, however, that "[w]hether a
picture is obscene or indecent must depend upon
the circumstances of the case," 8 and that
ultimately, the question is to be decided by the
"judgment of the aggregate sense of the
community reached by it." 9
Yet Kottinger, in its effort to arrive at a
"conclusive" definition, succeeded merely in
generalizing a problem that has grown
increasingly complex over the years. Precisely,
the question is: When does a publication have a
corrupting tendency, or when can it be said to be
offensive to human sensibilities? And obviously, it
is to beg the question to say that a piece of
literature has a corrupting influence because it is
obscene, and vice-versa.
Apparently, Kottinger was aware of its own
uncertainty because in the same breath, it would
leave the final say to a hypothetical "community
standard" whatever that is and that the
question must supposedly be judged from case to
case.
About three decades later, this Court
promulgated People v. Go Pin, 10 a prosecution
under Article 201 of the Revised Penal Code. Go
Pin was also even hazier:
. . . We agree with counsel for appellant in part. If
such pictures, sculptures and paintings are shown
in art exhibits and art galleries for the cause of
art, to be viewed and appreciated by people
interested in art, there would be no offense
committed. However, the pictures here in
question were used not exactly for art's sake but
rather for commercial purposes. In other words,
the supposed artistic qualities of said pictures
were being commercialized so that the cause of
art was of secondary or minor importance. Gain
and profit would appear to have been the main, if
not the exclusive consideration in their exhibition;
and it would not be surprising if the persons who
went to see those pictures and paid entrance fees
for the privilege of doing so, were not exactly
artists and persons interested in art and who
generally go to art exhibitions and galleries to
satisfy and improve their artistic tastes, but
rather people desirous of satisfying their morbid
curiosity and taste, and lust, and for love for
excitement, including the youth who because of
their immaturity are not in a position to resist and
shield themselves from the ill and perverting
effects of these pictures. 11
xxx xxx xxx
As the Court declared, the issue is a complicated
one, in which the fine lines have neither been
drawn nor divided. It is easier said than done to
say, indeed, that if "the pictures here in question
were used not exactly for art's sake but rather for
commercial purposes," 12 the pictures are not
entitled to any constitutional protection.
It was People v. Padan y Alova, 13 however, that
introduced to Philippine jurisprudence the
"redeeming" element that should accompany the
work, to save it from a valid prosecution. We
quote:
. . . We have had occasion to consider offenses
like the exhibition of still or moving pictures of
women in the nude, which we have condemned
for obscenity and as offensive to morals. In those
34 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
cases, one might yet claim that there was
involved the element of art; that connoisseurs of
the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude,
or the human body exhibited in sheer nakedness,
as models in tableaux vivants. But an actual
exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In
it, there is no room for art. One can see nothing in
it but clear and unmitigated obscenity,
indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust
and lewdness, and exerting a corrupting influence
specially on the youth of the land. . . . 14
Padan y Alova, like Go Pin, however, raised more
questions than answers. For one thing, if the
exhibition was attended by "artists and persons
interested in art and who generally go to art
exhibitions and galleries to satisfy and improve
their artistic tastes," 15 could the same
legitimately lay claim to "art"? For another,
suppose that the exhibition was so presented that
"connoisseurs of [art], and painters and sculptors
might find inspiration," 16 in it, would it cease to
be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much
latitude for judicial arbitrament, which has
permitted an ad lib of ideas and "two-cents
worths" among judges as to what is obscene and
what is art.
In a much later decision, Gonzalez v. Kalaw
Katigbak, 17 the Court, following trends in the
United States, adopted the test: "Whether to the
average person, applying contemporary
standards, the dominant theme of the material
taken as a whole appeals to prurient interest." 18
Kalaw-Katigbak represented a marked departure
from Kottinger in the sense that it measured
obscenity in terms of the "dominant theme" of
the work rather than isolated passages, which
were central to Kottinger (although both cases
are agreed that "contemporary community
standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover
to make the determination of obscenity
essentially a judicial question and as a
consequence, to temper the wide discretion
Kottinger had given unto law enforcers. cdphil
It is significant that in the United States,
constitutional law on obscenity continues to
journey from development to development,
which, states one authoritative commentator
(with ample sarcasm), has been as "unstable as it
is unintelligible." 19
Memoirs v. Massachusettes, 20 a 1966 decision,
which characterized obscenity as one "utterly
without any redeeming social value," 21 marked
yet another development.
The latest word, however, is Miller v. California,
22 which expressly abandoned Massachusettes,
and established "basic guidelines," 23 to wit: "(a)
whether 'the average person, applying
contemporary standards' would find the work,
taken as a whole, appeals to the prurient
interest . . .; (b) whether the work depicts or
describes, in a patently offensive way, sexual
conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or
scientific value." 24
(A year later, the American Supreme Court
decided Hamling v. United States, 25 which
repeated Miller, and Jenkins v. Georgia, 26 yet
another reiteration of Miller. Jenkins, curiously,
acquitted the producers of the motion picture,
Carnal Knowledge, in the absence of "genitals"
portrayed on screen, although the film
highlighted contemporary American sexuality.).
The lack of uniformity in American jurisprudence
as to what constitutes "obscenity" has been
attributed to the reluctance of the courts to
recognize the constitutional dimension of the
problem. 27 Apparently, the courts have assumed
that "obscenity" is not included in the guaranty of
free speech, an assumption that, as we averred,
has allowed a climate of opinions among
magistrates predicated upon arbitrary, if vague
theories of what is acceptable to society. And
"[t]here is little likelihood," says Tribe, "that this
development has reached a state of rest, or that
it will ever do so until the Court recognizes that
obscene speech is speech nonetheless, although
it is subject as in all speech to regulation in
the interests of [society as a whole] but not in
the interest of a uniform vision of how human
sexuality should be regarded and portrayed." 28
In the case at bar, there is no challenge on the
right of the State, in the legitimate exercise of
police power, to suppress smut provided it is
smut. For obvious reasons, smut is not smut
simply because one insists it is smut. So is it
equally evident that individual tastes develop,
adapt to wide-ranging influences, and keep in
step with the rapid advance of civilization. What
shocked our forebears, say, five decades ago, is
not necessarily repulsive to the present
generation. James Joyce and D.H. Lawrence were
censored in the thirties yet their works are
considered important literature today. 29 Goya's
La Maja desnuda was once banned from public
exhibition but now adorns the world's most
prestigious museums.
But neither should we say that "obscenity" is a
bare (no pun intended) matter of opinion. As we
said earlier, it is the divergent perceptions of men
and women that have probably compounded the
problem rather than resolved it.
What the Court is impressing, plainly and simply,
is that the question is not, and has not been, an
easy one to answer, as it is far from being a
settled matter. We share Tribe's disappointment
over the discouraging trend in American
decisional law on obscenity as well as his
pessimism on whether or not an "acceptable"
solution is in sight.
In the final analysis perhaps, the task that
confronts us is less heroic than rushing to a
"perfect" definition of "obscenity", if that is
possible, as evolving standards for proper police
conduct faced with the problem, which, after all,
is the plaint specifically raised in the petition.
35 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes
within the ambit of free expression, although not
its protection. In free expression cases, this Court
has consistently been on the side of the exercise
of the right, barring a "clear and present danger"
that would warrant State interference and action.
30 But, so we asserted in Reyes v. Bagatsing, 31
"the burden to show the existence of grave and
imminent danger that would justify adverse
action . . . lies on the . . . authorit[ies]." 32
"There must be objective and convincing, not
subjective or conjectural, proof of the existence of
such clear and present danger." 33 "It is essential
for the validity of . . . previous restraint or
censorship that the . . . authority does not rely
solely on his own appraisal of what the public
welfare, peace or safety may require." 34
"To justify such a limitation, there must be proof
of such weight and sufficiency to satisfy the clear
and present danger test." 35
The above disposition must not, however, be
taken as a neat effort to arrive at a solution so
only we may arrive at one but rather as a serious
attempt to put the question in its proper
perspective, that is, as a genuine constitutional
issue.
It is also significant that in his petition, the
petitioner asserts constitutional issues, mainly,
due process and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case
involving the delivery of a political speech, the
presumption is that the speech may validly be
said. The burden is on the State to demonstrate
the existence of a danger, a danger that must not
only be (1) clear but also, (2) present, to justify
State action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no
choice. However, if it acts notwithstanding that
(absence of evidence of a clear and present
danger), it must come to terms with, and be held
accountable for, due process.
The Court is not convinced that the private
respondents have shown the required proof to
justify a ban and to warrant confiscation of the
literature for which mandatory injunction had
been sought below. First of all, they were not
possessed of a lawful court order: (1) finding the
said materials to be pornography, and (2)
authorizing them to carry out a search and
seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that . . .
freedom of the press is not without restraint, as
the state has the right to protect society from
pornographic literature that is offensive to public
morals." 36 Neither do we. But it brings us back
to square one: were the "literature" so
confiscated "pornographic"? That "we have laws
punishing the author, publisher and sellers of
obscence publications (Sec. 1, Art. 201, Revised
Penal Code, as amended by P.D. No. 960 and P.D.
No. 969)," 37 is also fine, but the question, again,
is: Has the petitioner been found guilty under the
statute?

The fact that the former respondent Mayor's act
was sanctioned by "police power" is no license to
seize property in disregard of due process. In
Philippine Service Exporters, Inc. v. Drilon, 38 We
defined police power as "state authority to enact
legislation that may interfere with personal liberty
or property in order to promote the general
welfare." 39 Presidential Decrees Nos. 960 and
969 are, arguably, police power measures, but
they are not, by themselves, authorities for high-
handed acts. They do not exempt our law
enforcers, in carrying out the decree of the twin
presidential issuances (Mr. Marcos'), from the
commandments of the Constitution, the right to
due process of law and the right against
unreasonable searches and seizures, specifically.
Significantly, the Decrees themselves lay down
procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles.
The disposition of the literature, films, prints,
engravings, sculptures, paintings, or other
materials involved in the violation referred to in
Section 1 hereof (Art. 201), RPC as amended)
shall be governed by the following rules:
(a) Upon conviction of the offender, to be
forfeited in favor of the Government to be
destroyed.
(b) Where the criminal case against any violator
of this decree results in an acquittal, the
obscene/immoral literature, films, prints,
engravings, sculptures, paintings or other
materials and articles involved in the violation
referred to in Section 1 (referring to Art. 201)
hereof shall nevertheless be forfeited in favor of
the government to be destroyed, after forfeiture
proceedings conducted by the Chief of
Constabulary.
(c) The person aggrieved by the forfeiture action
of the Chief of Constabulary may, within fifteen
(15) days after his receipt of a copy of the
decision, appeal the matter to the Secretary of
National Defense for review. The decision of the
Secretary of National Defense shall be final and
unappealable. (Sec. 2, PD No. 960 as amended by
PD No. 969.)
Sec. 4. Additional Penalties. Additional
penalties shall be imposed as follows:
1. In case the offender is a government official or
employee who allows the violations of Section 1
hereof, the penalty as provided herein shall be
imposed in the maximum period and, in addition,
the accessory penalties provided for in the
Revised Penal Code, as amended, shall likewise
be imposed. 40
Under the Constitution, 41 on the other hand:
SEC. 3. The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined by the judge, or such other
responsible officer as may be authorized by law,
after examination under oath or affirmation of the
36 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
complainant and the witnesses he may produce,
and particularly describing the place to be
searched, and the persons or things to be seized.
42
It is basic that searches and seizures may be
done only through a judicial warrant, otherwise,
they become unreasonable and subject to
challenge. In Burgos v. Chief of Staff AFP, 43 We
countermanded the orders of the Regional Trial
Court authorizing the search of the premises of
We Forum and Metropolitan Mail, two Metro
Manila dailies, by reason of a defective warrant.
We have greater reason here to reprobate the
questioned raid, in the complete absence of a
warrant, valid or invalid. The fact that the instant
case involves an obscenity rap makes it no
different from Burgos, a political case, because,
and as we have indicated, speech is speech,
whether political or "obscene"
The Court is not ruling out warrantless searches,
as the Rules of Court (1964 rev.) (the Rules then
prevailing), provide:
SEC. 12. Search without warrant of person
arrested. A person charged with an offense
may be searched for dangerous weapons or
anything which may be used as proof of the
commission of the offense. 44
but as the provision itself suggests, the search
must have been an incident to a lawful arrest,
and the arrest must be on account of a crime
committed. Here, no party has been charged, nor
are such charges being readied against any party,
under Article 201, as amended, of the Revised
Penal Code.
We reject outright the argument that "[t]here is
no constitutional nor legal provision which would
free the accused of all criminal responsibility
because there had been no warrant," 45 and that
"violation of penal law [must] be punished." 46
For starters, there is no "accused" here to speak
of, who ought to be "punished". Second, to say
that the respondent Mayor could have validly
ordered the raid (as a result of an anti-smut
campaign) without a lawful search warrant
because, in his opinion, "violation of penal laws"
has been committed, is to make the respondent
Mayor judge, jury, and executioner rolled into
one. And precisely, this is the very complaint of
the petitioner.
We make this resume.
1. The authorities must apply for the issuance of
a search warrant from a judge, if in their opinion,
an obscenity rap is in order;
2. The authorities must convince the court that
the materials sought to be seized are "obscene",
and pose a clear and present danger of an evil
substantive enough to warrant State interference
and action;
3. The judge must determine whether or not the
same are indeed "obscene:" the question is to be
resolved on a case-to-case basis and on His
Honor's sound discretion.
4. If, in the opinion of the court, probable cause
exists, it may issue the search warrant prayed
for;
5. The proper suit is then brought in the court
under Article 201 of the Revised Penal Code;
6. Any conviction is subject to appeal. The
appellate court may assess whether or not the
properties seized are indeed "obscene"
These do not foreclose, however, defenses under
the Constitution or applicable statutes, or
remedies against abuse of official power under
the Civil Code 47 or the Revised Penal code. 48
WHEREFORE, the petition is GRANTED. The
decision of the respondent court is REVERSED
and SET ASIDE. It appearing, however, that the
magazines subject of the search and seizure have
been destroyed, the Court declines to grant
affirmative relief. To that extent, the case is moot
and academic. cdll
SO ORDERED.
Melencio-Herrera, Cruz, Paras, Gancayco, Padilla,
Bidin, Cortes, Grio-Aquino, Medialdea and
Regalado, JJ., concur.
Fernan, C.J., Narvasa and Feliciano, JJ., In the
result.
Gutierrez, Jr., J., On leave.
(ABS-CBN Broadcasting Corp. v. COMELEC,
G.R. No. 133486, January 28, 2000)
EN BANC
[G.R. No. 133486. January 28, 2000.]
ABS-CBN BROADCASTING CORPORATION,
petitioner, vs. COMMISSION ON ELECTIONS,
respondent.
Quiason Makalintal Barot Torres & Ibarra for
petitioner.
The Solicitor General for respondent.
SYNOPSIS
This is a petition for certiorari under Rule 65 of
the Rules of Court filed by ABS-CBN Broadcasting
Corporation assailing the COMELEC En Banc
Resolution No. 98-1419 dated April 21, 1998
approving the issuance of a restraining order to
stop petitioner ABS-CBN or any other groups, its
agents or representatives from conducting exit
survey and to authorize the Honorable Chairman
to issue the same. Because of the issuance of this
resolution, petitioner filed the instant case, and
on May 9, 1998, the Court issued the temporary
restraining order prayed for by petitioner. The
lone issue to be resolved in this case is whether
or not the respondent Comelec acted with grave
abuse of discretion amounting to lack or excess
of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any
other group, its agents or representatives from
conducting exit polls during the May 11, 1998
elections.
The Supreme Court found the petition
meritorious. The Court ruled that the holding of
exit polls and the dissemination of their results
through mass media constitute an essential part
of the freedoms of speech and of the press.
Hence, the Comelec cannot ban them totally in
the guise of promoting clean, honest, orderly and
37 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
credible elections. Moreover, the Comelec's
concern with the possible noncommunicative
effect of exit polls disorder and confusion in
the voting centers does not justify a total ban
on them. Undoubtedly, the assailed Comelec
Resolution was too broad, since its application is
without qualification as to whether the polling is
disruptive or not. Concededly, the Omnibus
Election Code prohibits disruptive behaviors
around the voting centers. There was no showing,
however, that exit polls or the means to interview
voters cause chaos in voting centers. Neither had
any evidence been presented proving that the
presence of exit poll reporters near the election
precincts tended to create disorder or confuse the
voters. Accordingly, the petition was granted and
the temporary restraining order issued by the
Court was made permanent.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW;
BILL OF RIGHTS; FREEDOM OF SPEECH AND
OF THE PRESS; NATURE AND SCOPE
THEREOF. The freedom of expression is a
fundamental principle of our democratic
government. It "is a 'preferred' right and,
therefore, stands on a higher level than
substantive economic or other liberties. . . . [T]his
must be so because the lessons of history, both
political and legal, illustrate that freedom of
thought and speech is the indispensable
condition of nearly every other form of freedom."
Our Constitution clearly mandates that no law
shall be passed abridging the freedom of speech
or of the press. In the landmark case Gonzales v.
Comelec, this Court enunciated that at the very
least, free speech and a free press consist of the
liberty to discuss publicly and truthfully any
matter of public interest without prior restraint.
The freedom of expression is a means of assuring
individual self-fulfillment, of attaining the truth, of
securing participation by the people in social and
political decision-making, and of maintaining the
balance between stability and change. It
represents a profound commitment to the
principle that debates on public issues should be
uninhibited, robust, and wide open. It means
more than the right to approve existing political
beliefs or economic arrangements, to lend
support to official measures, or to take refuge in
the existing climate of opinion on any matter of
public consequence. And paraphrasing the
eminent Justice Oliver Wendell Holmes, we stress
that the freedom encompasses the thought we
hate, no less than the thought we agree with.
DTAaCE
2. ID.; ID.; ID.; ID.; LIMITATIONS; CLEAR AND
PRESENT DANGER TEST. This Court adheres
to the "clear and present danger" test. It
implicitly did in its earlier decisions in Primicias v.
Fugoso and American Bible Society v. City of
Manila; as well as in later ones, Vera v. Arca,
Navarro v. Villegas, Imbong v. Ferrer, Blo Umpar
Adiong v. Comelec and, more recently, in Iglesia
ni Cristo v. MTRCB. In setting the standard or test
for the "clear and present danger" doctrine, the
Court echoed the words of Justice Holmes: "The
question in every case is whether the words used
are used in such circumstances and are of such a
nature as to create a clear and present danger
that they will bring about the substantive evils
that Congress has a right to prevent. It is a
question of proximity and degree." A limitation on
the freedom of expression may be justified only
by a danger of such substantive character that
the state has a right to prevent. Unlike in the
"dangerous tendency" doctrine, the danger must
not only be clear but also present. "Present"
refers to the time element; the danger must not
only be probable but very likely to be inevitable.
The evil sought to be avoided must be so
substantive as to justify a clamp over one's
mouth or a restraint of a writing instrument.
3. ID.; ID.; ID.; ID.; JUSTIFICATION FOR
RESTRICTION. Doctrinally, the Court has
always ruled in favor of the freedom of
expression, and any restriction is treated an
exemption. The power to exercise prior restraint
is not to be presumed; rather the presumption is
against its validity. And it is respondent's burden
to overthrow such presumption. Any act that
restrains speech should be greeted with furrowed
brows, so it has been said. To justify a restriction,
the promotion of a substantial government
interest must be clearly shown. Thus: "A
government regulation is sufficiently justified if it
is within the constitutional power of the
government, if it furthers an important or
substantial government interest; if the
governmental interest is unrelated to the
suppression of free expression; and if the
incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the
furtherance of that interest." Hence, even though
the government's purposes are legitimate and
substantial, they cannot be pursued by means
that broadly stifle fundamental personal liberties,
when the end can be more narrowly achieved.
4. ID.; ID.; ID.; ID.; TOTAL BAN ON EXIT POLL
NOT JUSTIFIED. The Comelec's concern with
the possible noncommunicative effect of exit
polls disorder and confusion in the voting
centers does not justify a total ban on them.
Undoubtedly, the assailed Comelec Resolution is
too broad, since its application is without
qualification as to whether the polling is
disruptive or not. Concededly, the Omnibus
Election Code prohibits disruptive behavior
around the voting centers. There is no showing,
however, that exit polls or the means to interview
voters cause chaos in voting centers. Neither has
any evidence been presented proving that the
presence of exit poll reporters near an election
precinct tends to create disorder or confuse the
voters. Moreover, the prohibition incidentally
prevents the collection of exit poll data and their
use for any purpose. The valuable information
and ideas that could be derived from them, based
on the voters' answers to the survey questions
will forever remain unknown and unexplored.
Unless the ban is restrained, candidates,
researchers, social scientists and the electorate in
general would be deprived of studies on the
impact of current events and of election-day and
other factors on voters' choices. In Daily Herald
Co. vs. Munro, the US Supreme Court held that a
statute, one of the purposes of which was to
prevent the broadcasting of early returns, was
unconstitutional because such purpose was
impermissible, and the statute was neither
narrowly tailored to advance a state interest nor
the least restrictive alternative. Furthermore, the
general interest of the State in insulating voters
38 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
from outside influences is insufficient to justify
speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the
reason that they might indirectly affect the
voters' choices is impermissible, so is regulating
speech via an exit poll restriction. The absolute
ban imposed by the Comelec cannot, therefore,
be justified. It does not leave open any
alternative channel of communication to gather
the type of information obtained through exit
polling. On the other hand, there are other valid
and reasonable ways and means to achieve the
Comelec end of avoiding or minimizing disorder
and confusion that may be brought about by exit
surveys.
5. ID.; ID.; ID.; ID.; EXIT POLLS DO NOT
TRANSGRESS THE SANCTITY AND SECRECY
OF THE BALLOT. The contention of public
respondent that exit polls indirectly transgress
the sanctity and the secrecy of the ballot is off-
tangent to the real issue. Petitioner does not seek
access to the ballots cast by the voters. The
ballot system of voting is not at issue here. The
reason behind the principle of ballot secrecy is to
avoid vote buying through voter identification.
Thus, voters are prohibited from exhibiting the
contents of their official ballots to other persons,
from making copies thereof, or from putting
distinguishing marks thereon so as to be
identified. Also proscribed is finding out contents
of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters
who have been assisted. Clearly, what is
forbidden is the association of voters with their
respective votes, for the purpose of assuring that
the votes have been cast in accordance with the
instructions of a third party. This result cannot,
however, be achieved merely through the voters'
verbal and confidential disclosure to a pollster of
whom they have voted for. In exit polls, the
contents of the official ballot are not actually
exposed. Furthermore, the revelation of whom an
elector has voted for is not compulsory, but
voluntary. Voters may also choose not to reveal
their identities. Indeed, narrowly tailored
countermeasures may be prescribed by the
Comelec, so as to minimize or suppress incidental
problems in the conduct of exit polls, without
transgressing the fundamental rights of our
people.
VITUG, J., separate opinion:
CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHT TO FREE SPEECH AND INFORMATION;
NOT ILLIMITABLE AND IMMUNE FROM THE
VALID EXERCISE OF AN EVER DEMANDING
AND PERVASIVE POLICE POWER. While I
understand what the ponencia is saying quite
laudably, I also appreciate, upon the other hand,
the concern of the Commission on Elections, i.e.,
that the conduct of exit polls can have some
adverse effects on the need to preserve the
sanctity of the ballot. The Commission performs
an indispensable task of ensuring free, honest,
and orderly elections and of guarding against any
frustration of the true will of the people.
Expectedly, it utilizes all means available within
its power and authority to prevent the electoral
process from being manipulated and rendered an
absurdity. Like my colleagues, I greatly prize the
freedom of expression but, so also, I cherish no
less the right of the people to express their will by
means of the ballot. In any case, I must accept
the reality that the right to information and free
speech is not illimitable and immune from the
valid exercise of an ever demanding and
pervasive police power. Whether any kind of
restraint should be upheld or declared invalid in
the proper balancing of interest is one that must
be resolved at any given moment, not on
perceived circumstances, but on prevailing facts.
aDIHCT
KAPUNAN, J., dissenting opinion:
1. POLITICAL LAW; CONSTITUTIONAL LAW;
RIGHT TO FREE SPEECH; IF THE RIGHT TO
FREE SPEECH COLLIDES WITH A NORM OF
CONSTITUTIONAL STATURE, THE RULE ON
HEAVY PRESUMPTION OF INVALIDITY DOES
NOT APPLY. The majority opinion cites the
general rule that any restrictions to freedom of
expression would be burdened with a can be vital tools in eliminating the evils of
presumption of invalidity and should be greeted
with "furrowed brows." While this has been the
traditional approach, this rule does not apply
where, as in this case, the Comelec exercised its
Constitutional functions of securing the secrecy
and sanctity of the ballots and ensuring the
integrity of the elections. Thus, Mr. Justice
Feliciano in National Press Club (NPC) v. Comelec
wrote: The technical effect of Article IX (C) (4) of
the Constitution may be seem to be that no
presumption of invalidity arises in respect of
supervisory or regulatory authority on the part of
the COMELEC for the purpose of securing equal
opportunity among candidates for political office,
although such supervision or regulation may
result in some limitation of the right of free
speech and free press. For supervision or
regulation of the operations of media enterprises
is scarcely conceivable without such
accompanying limitation. Thus, the applicable
rule is the general, time honored one that a
statute is presumed to be constitutional and that
the party asserting its unconstitutionality must
discharge the burden of clearly and convincingly
proving that assertion. The NPC decision holds
that if the right to free speech collides with a
norm of constitutional stature, the rule on heavy
presumption of invalidity does not apply.
2. ID.; ID.; ID.; IF NO PRESUMPTION OF
INVALIDITY ARISES, THERE IS NO OCCASION
FOR THE APPLICATION OF THE CLEAR AND
PRESENT DANGER TEST. Our Constitution
mandates the Comelec to enforce and administer
laws and regulations relative to the conduct of
elections and to secure the secrecy and sanctity
of the ballots to ensure orderly, honest, credible
and peaceful elections. This Constitutional
provision effectively displaces the general
presumption of invalidity in favor of the
presumption that Comelec acted in the exercise
of its constitutionally mandated powers. If no
presumption of invalidity arises, I see no occasion
for the application of the "clear and present
danger test." As this Court, through Mr. Justice
Mendoza, succinctly observed: . . . the clear-and-
present danger test is not, however, a sovereign
remedy for all free speech problems. As has been
pointed out by a thoughtful student of
constitutional law, it was originally formulated for
39 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
the criminal law and only later appropriated for
free speech cases. For the criminal law is
necessarily concerned with the line at which
innocent preparation ends and guilty conspiracy
or attempt begins. Clearly, it is inappropriate as a
test for determining the constitutional validity of
law which, like 11(b) of R.A. No. 6646, are not
concerned with the content of political ads but
only with their incidents. To apply the clear-and-
present danger test to such regulatory measures
would be like using a sledgehammer to drive a
nail when a regular hammer is all that is needed.
DECISION
PANGANIBAN, J p:
The holding of exit polls and the dissemination of
their results through mass media constitute an
essential part of the freedoms of speech and of
the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest,
orderly and credible elections. Quite the contrary,
exit polls properly conducted and publicized
election-fixing and fraud. Narrowly tailored
countermeasures may be prescribed by the
Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls,
without transgressing in any manner the
fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65
of the Rules of Court assailing Commission on
Elections (Comelec) en banc Resolution No. 98-
1419 1 dated April 21, 1998. In the said
Resolution, the poll body
"RESOLVED to approve the issuance of a
restraining order to stop ABS-CBN or any other
groups, its agents or representatives from
conducting such exit survey and to authorize the
Honorable Chairman to issue the same."
The Resolution was issued by the Comelec
allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared
a project, with PR groups, to conduct radio-TV
coverage of the elections . . . and to make [an]
exit survey of the . . . vote during the elections
for national officials particularly for President and
Vice President, results of which shall be
[broadcast] immediately." 2 The electoral body
believed that such project might conflict with the
official Comelec count, as well as the unofficial
quick count of the National Movement for Free
Elections (Namfrel). It also noted that it had not
authorized or deputized Petitioner ABS-CBN to
undertake the exit survey.
On May 9, 1998, this Court issued the Temporary
Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until
further orders, from implementing the assailed
Resolution or the restraining order issued
pursuant thereto, if any. In fact, the exit polls
were actually conducted and reported by media
without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not
the Respondent Commission acted with grave
abuse of discretion amounting to a lack or excess
of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any
[other group], its agents or representatives from
conducting exit polls during the . . . May 11
elections." 3
In his Memorandum, 4 the solicitor general, in
seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2)
prematurity, because of petitioner's failure to
seek a reconsideration of the assailed Comelec
Resolution. LibLex
The Court's Ruling
The Petition 5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is
moot and academic, because the May 11, 1998
election has already been held and done with.
Allegedly, there is no longer any actual
controversy before us.
The issue is not totally moot. While the assailed
Resolution referred specifically to the May 11,
1998 election, its implications on the people's
fundamental freedom of expression transcend the
past election. The holding of periodic elections is
a basic feature of our democratic government. By
its very nature, exit polling is tied up with
elections. To set aside the resolution of the issue
now will only postpone a task that could well crop
up again in future elections. 6
In any event, in Salonga v. Cruz Pano, the Court
had occasion to reiterate that it "also has the
duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or
rules. It has the symbolic function of educating
bench and bar on the extent of protection given
by constitutional guarantees." 7 Since the
fundamental freedoms of speech and of the press
are being invoked here, we have resolved to
settle, for the guidance of posterity, whether they
likewise protect the holding of exit polls and the
dissemination of data derived therefrom.
The solicitor general further contends that the
Petition should be dismissed for petitioner's
failure to exhaust available remedies before the
issuing forum, specifically the filing of a motion
for reconsideration.
This Court, however, has ruled in the past that
this procedural requirement may be glossed over
to prevent a miscarriage of justice, 8 when the
issue involves the principle of social justice or the
protection of labor, 9 when the decision or
resolution sought to be set aside is a nullity, 10 or
when the need for relief is extremely urgent and
certiorari is the only adequate and speedy
remedy available. 11
The instant Petition assails a Resolution issued by
the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself.
Besides, the petitioner got hold of a copy thereof
only on May 4, 1998. Under the circumstances,
there was hardly enough opportunity to move for
a reconsideration and to obtain a swift resolution
in time for the May 11, 1998 elections. Moreover,
not only is time of the essence; the Petition
involves transcendental constitutional issues.
40 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Direct resort to this Court through a special civil
action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey
conducted by qualified individuals or group of
individuals for the purpose of determining the
probable result of an election by confidentially
asking randomly selected voters whom they have
voted for, immediately after they have officially
cast their ballots. The results of the survey are
announced to the public, usually through the
mass media, to give an advance overview of how,
in the opinion of the polling individuals or
organizations, the electorate voted. In our
electoral history, exit polls had not been resorted
to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation
maintains that it is a responsible member of the
mass media, committed to report balanced
election-related data, including "the exclusive
results of Social Weather Station (SWS) surveys
conducted in fifteen administrative regions."
It argues that the holding of exit polls and the
nationwide reporting of their results are valid
exercises of the freedoms of speech and of the
press. It submits that, in precipitately and
unqualifiedly restraining the holding and the
reporting of exit polls, the Comelec gravely
abused its discretion and grossly violated the
petitioner's constitutional rights.
Public respondent, on the other hand, vehemently
denies that, in issuing the assailed Resolution, it
gravely abused its discretion. It insists that the
issuance thereof was "pursuant to its
constitutional and statutory powers to promote a
clean, honest, orderly and credible May 11, 1998
elections"; and "to protect, preserve and maintain
the secrecy and sanctity of the ballot." It
contends that "the conduct of exit surveys might
unduly confuse and influence the voters," and
that the surveys were designed "to condition the
minds of people and cause confusion as to who
are the winners and the [losers] in the election,"
which in turn may result in "violence and
anarchy."
Public respondent further argues that "exit
surveys indirectly violate the constitutional
principle to preserve the sanctity of the ballots,"
as the "voters are lured to reveal the contents of
ballots," in violation of Section 2, Article V of the
Constitution; 12 and relevant provisions of the
Omnibus Election Code. 13 It submits that the
constitutionally protected freedoms invoked by
petitioner "are not immune to regulation by the
State in the legitimate exercise of its police
power," such as in the present case.
The solicitor general, in support of the public
respondent, adds that the exit polls pose a "clear
and present danger of destroying the credibility
and integrity of the electoral process,"
considering that they are not supervised by any
government agency and can in general be
manipulated easily. He insists that these polls
would sow confusion among the voters and would
undermine the official tabulation of votes
conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the
reporting of exit polls. The question can thus be
more narrowly defined: May the Comelec, in the
exercise of its powers, totally ban exit polls? In
answering this question, we need to review
quickly our jurisprudence on the freedoms of
speech and of the press.
Nature and Scope of Freedoms
of Speech and of the Press
The freedom of expression is a fundamental
principle of our democratic government. It "is a
'preferred' right and, therefore, stands on a
higher level than substantive economic or other
liberties. . . . [T]his must be so because the
lessons of history, both political and legal,
illustrate that freedom of thought and speech is
the indispensable condition of nearly every other
form of freedom." 14
Our Constitution clearly mandates that no law
shall be passed abridging the freedom of speech
or of the press. 15 In the landmark case Gonzales
v. Comelec, 16 this Court enunciated that at the
very least, free speech and a free press consist of
the liberty to discuss publicly and truthfully any
matter of public interest without prior restraint.
LLpr
The freedom of expression is a means of assuring
individual self-fulfillment, of attaining the truth, of
securing participation by the people in social and
political decision-making, and of maintaining the
balance between stability and change. 17 It
represents a profound commitment to the
principle that debates on public issues should be
uninhibited, robust, and wide open. 18 It means
more than the right to approve existing political
beliefs or economic arrangements, to lend
support to official measures, or to take refuge in
the existing climate of opinion on any matter of
public consequence. And paraphrasing the
eminent Justice Oliver Wendell Holmes, 19 we
stress that the freedom encompasses the thought
we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however,
preclude an absolute exercise of the freedoms of
speech and of the press. Such freedoms could not
remain unfettered and unrestrained at all times
and under all circumstances. 20 They are not
immune to regulation by the State in the exercise
of its police power. 21 While the liberty to think is
absolute, the power to express such thought in
words and deeds has limitations.
In Cabansag v. Fernandez 22 this Court had
occasion to discuss two theoretical tests in
determining the validity of restrictions to such
freedoms, as follows:
"These are the 'clear and present danger' rule
and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the
evil consequence of the comment or utterance
must be 'extremely serious and the degree of
imminence extremely high' before the utterance
41 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
can be punished. The danger to be guarded
against is the 'substantive evil' sought to be
prevented. . . ." 23
"The 'dangerous tendency' rule, on the other
hand, . . . may be epitomized as follows: If the
words uttered create a dangerous tendency
which the state has a right to prevent, then such
words are punishable. It is not necessary that
some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is
sufficient that such acts be advocated in general
terms. Nor is it necessary that the language used
be reasonably calculated to incite persons to acts
of force, violence, or unlawfulness. It is sufficient
if the natural tendency and probable effect of the
utterance be to bring about the substantive evil
which the legislative body seeks to prevent." 24
Unquestionably, this Court adheres to the "clear
and present danger" test. It implicitly did in its
earlier decisions in Primicias v. Fugoso 25 and
American Bible Society v. City of Manila; 26 as
well as in later ones, Vera v. Arca, 27 Navarro v.
Villegas, 28 Imbong v. Ferrer, 29 Blo Umpar
Adiong v. Comelec 30 and, more recently, in
Iglesia ni Cristo v. MTRCB. 31 In setting the
standard or test for the "clear and present
danger" doctrine, the Court echoed the words of
Justice Holmes: "The question in every case is
whether the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity
and degree." 32
A limitation on the freedom of expression may be
justified only by a danger of such substantive
character that the state has a right to prevent.
Unlike in the "dangerous tendency" doctrine, the
danger must not only be clear but also present.
"Present" refers to the time element; the danger
must not only be probable but very likely to be
inevitable. 33 The evil sought to be avoided must
be so substantive as to justify a clamp over one's
mouth or a restraint of a writing instrument. 34
Justification for a
Restriction
Doctrinally, the Court has always ruled in favor of
the freedom of expression, and any restriction is
treated an exemption. The power to exercise prior
restraint is not to be presumed; rather the
presumption is against its validity. 35 And it is
respondent's burden to overthrow such
presumption. Any act that restrains speech
should be greeted with furrowed brows, 36 so it
has been said. Cdpr
To justify a restriction, the promotion of a
substantial government interest must be clearly
shown. 37 Thus:
"A government regulation is sufficiently justified if
it is within the constitutional power of the
government, if it furthers an important or
substantial government interest; if the
governmental interest is unrelated to the
suppression of free expression; and if the
incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the
furtherance of that interest." 38

Hence, even though the government's purposes
are legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental
personal liberties, when the end can be more
narrowly achieved. 39
The freedoms of speech and of the press should
all the more be upheld when what is sought to be
curtailed is the dissemination of information
meant to add meaning to the equally vital right of
suffrage. 40 We cannot support any ruling or
order "the effect of which would be to nullify so
vital a constitutional right as free speech." 41
When faced with borderline situations in which
the freedom of a candidate or a party to speak or
the freedom of the electorate to know is invoked
against actions allegedly made to assure clean
and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the
freedom of the citizen and the State's power to
regulate should not be antagonistic. There can be
no free and honest elections if, in the efforts to
maintain them, the freedom to speak and the
right to know are unduly curtailed. 42
True, the government has a stake in protecting
the fundamental right to vote by providing voting
places that are safe and accessible. It has the
duty to secure the secrecy of the ballot and to
preserve the sanctity and the integrity of the
electoral process. However, in order to justify a
restriction of the people's freedoms of speech
and of the press, the state's responsibility of
ensuring orderly voting must far outweigh them.
These freedoms have additional importance,
because exit polls generate important research
data which may be used to study influencing
factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably
restrictive, because it effectively prevents the use
of exit poll data not only for election-day
projections, but also for long-term research. 43
Comelec Ban on
Exit Polling
In the case at bar, the Comelec justifies its
assailed Resolution as having been issued
pursuant to its constitutional mandate to ensure
a free, orderly, honest, credible and peaceful
election. While admitting that "the conduct of an
exit poll and the broadcast of the results thereof
[are] . . . an exercise of press freedom," it argues
that "[p]ress freedom may be curtailed if the
exercise thereof creates a clear and present
danger to the community or it has a dangerous
tendency." It then contends that "an exit poll has
the tendency to sow confusion considering the
randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable.
The probability that the results of such exit poll
may not be in harmony with the official count
made by the Comelec . . . is ever present. In
other words, the exit poll has a clear and present
danger of destroying the credibility and integrity
of the electoral process."
Such arguments are purely speculative and
clearly untenable. First, by the very nature of a
42 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
survey, the interviewees or participants are
selected at random, so that the results will as
much as possible be representative or reflective
of the general sentiment or view of the
community or group polled. Second, the survey
result is not meant to replace or be at par with
the official Comelec count. It consists merely of
the opinion of the polling group as to who the
electorate in general has probably voted for,
based on the limited data gathered from polled
individuals. Finally, not at stake here are the
credibility and the integrity of the elections,
which are exercises that are separate and
independent from the exit polls. The holding and
the reporting of the results of exit polls cannot
undermine those of the elections, since the
former is only part of the latter. If at all, the
outcome of one can only be indicative of the
other.
The Comelec's concern with the possible
noncommunicative effect of exit polls disorder
and confusion in the voting centers does not
justify a total ban on them. Undoubtedly, the
assailed Comelec Resolution is too broad, since
its application is without qualification as to
whether the polling is disruptive or not. 44
Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers. 45
There is no showing, however, that exit polls or
the means to interview voters cause chaos in
voting centers. Neither has any evidence been
presented proving that the presence of exit poll
reporters near an election precinct tends to
create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents
the collection of exit poll data and their use for
any purpose. The valuable information and ideas
that could be derived from them, based on the
voters' answers to the survey questions will
forever remain unknown and unexplored. Unless
the ban is restrained, candidates, researchers,
social scientists and the electorate in general
would be deprived of studies on the impact of
current events and of election-day and other
factors on voters' choices.
In Daily Herald Co. v. Munro, 46 the US Supreme
Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early
returns, was unconstitutional because such
purpose was impermissible, and the statute was
neither narrowly tailored to advance a state
interest nor the least restrictive alternative.
Furthermore, the general interest of the State in
insulating voters from outside influences is
insufficient to justify speech regulation. Just as
curtailing election-day broadcasts and newspaper
editorials for the reason that they might indirectly
affect the voters' choices is impermissible, so is
regulating speech via an exit poll restriction. 47
The absolute ban imposed by the Comelec
cannot, therefore, be justified. It does not leave
open any alternative channel of communication
to gather the type of information obtained
through exit polling. On the other hand, there are
other valid and reasonable ways and means to
achieve the Comelec end of avoiding or
minimizing disorder and confusion that may be
brought about by exit surveys.
For instance, a specific limited area for
conducting exit polls may be designated. Only
professional survey groups may be allowed to
conduct the same. Pollsters may be kept at a
reasonable distance from the voting center. They
may be required to explain to voters that the
latter may refuse to be interviewed, and that the
interview is not part of the official balloting
process. The pollsters may further be required to
wear distinctive clothing that would show they
are not election officials. 48 Additionally, they
may be required to undertake an information
campaign on the nature of the exercise and the
results to be obtained therefrom. These
measures, together with a general prohibition of
disruptive behavior, could ensure a clean, safe
and orderly election. prcd
For its part, Petitioner ABS-CBN explains its
survey methodology as follows: (1) communities
are randomly selected in each province; (2)
residences to be polled in such communities are
also chosen at random; (3) only individuals who
have already voted, as shown by the indelible ink
on their fingers, are interviewed; (4) the
interviewers use no cameras of any sort; (5) the
poll results are released to the public only on the
day after the elections. 49 These precautions,
together with the possible measures earlier
stated, may be undertaken to abate the
Comelec's fear, without consequently and
unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that
the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the
constitutionally guaranteed rights of the media
and the electorate. Quite the contrary, instead of
disrupting elections, exit polls properly
conducted and publicized can be vital tools for
the holding of honest, orderly, peaceful and
credible elections; and for the elimination of
election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit
polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real
issue. Petitioner does not seek access to the
ballots cast by the voters. The ballot system of
voting is not at issue here.
The reason behind the principle of ballot secrecy
is to avoid vote buying through voter
identification. Thus, voters are prohibited from
exhibiting the contents of their official ballots to
other persons, from making copies thereof, or
from putting distinguishing marks thereon so as
to be identified. Also proscribed is finding out the
contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters
who have been assisted. Clearly, what is
forbidden is the association of voters with their
respective votes, for the purpose of assuring that
the votes have been cast in accordance with the
instructions of a third party. This result cannot,
however, be achieved merely through the voters'
verbal and confidential disclosure to a pollster of
whom they have voted for.
In exit polls, the contents of the official ballot are
not actually exposed. Furthermore, the revelation
of whom an elector has voted for is not
43 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed,
narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or
suppress incidental problems in the conduct of
exit polls, without transgressing the fundamental
rights of our people. cdrep
WHEREFORE, the Petition is GRANTED, and the
Temporary Restraining Order issued by the Court
on May 9, 1998 is made PERMANENT. Assailed
Minute Resolution No. 98-1419 issued by the
Comelec en banc on April 21, 1998 is hereby
NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Quisumbing,
Purisima, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Melo and Mendoza, JJ., join separate opinion of J.
Vitug.
Vitug, J., see separate opinion.
Kapunan, J., see dissenting opinion.
Pardo, J ., took no part.
(Social Weather Stations, Inc. v. COMELEC,
G.R. No. 147571, May 05, 2001)
EN BANC
[G.R. No. 147571. May 5, 2001.]
SOCIAL WEATHER STATIONS,
INCORPORATED and KAMAHALAN PUBLISHING
CORPORATION, doing business as MANILA
STANDARD, petitioners, vs. COMMISSION ON
ELECTIONS, respondent.
DECISION
MENDOZA, J p:
Petitioner, Social Weather Stations, Inc. (SWS), is
a private non-stock, non-profit social research
institution conducting surveys in various fields,
including economics, politics, demography, and
social development, and thereafter processing,
analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan
Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation,
which features newsworthy items of information
including election surveys.
Petitioners brought this action for prohibition to
enjoin the Commission on Elections from
enforcing 5.4 of R.A. No. 9006 (Fair Election Act),
which provides:
Surveys affecting national candidates shall not be
published fifteen (15) days before an election and
surveys affecting local candidates shall not be
published seven (7) days before an election.
The term "election surveys" is defined in 5.1 of
the law as follows:
Election surveys refer to the measurement of
opinions and perceptions of the voters as regards
a candidate's popularity, qualifications, platforms
or a matter of public discussion in relation to the
election, including voters' preference for
candidates or publicly discussed issues during the
campaign period (hereafter referred to as
"Survey").
To implement 5.4, Resolution 3636, 24(h),
dated March 1, 2001, of the COMELEC enjoins
Surveys affecting national candidates shall not be
published fifteen (15) days before an election and
surveys affecting local candidates shall not be
published seven (7) days before an election.
Petitioner SWS states that it wishes to conduct an
election survey throughout the period of the
elections both at the national and local levels and
release to the media the results of such survey as
well as publish them directly. Petitioner
Kamahalan Publishing Corporation, on the other
hand, states that it intends to publish election
survey results up to the last day of the elections
on May 14, 2001.
Petitioners argue that the restriction on the
publication of election survey results constitutes
a prior restraint on the exercise of freedom of
speech without any clear and present danger to
justify such restraint. They claim that SWS and
other pollsters conducted and published the
results of surveys prior to the 1992, 1995, and
1998 elections up to as close as two days before
the election day without causing confusion
among the voters and that there is neither
empirical nor historical evidence to support the
conclusion that there is an immediate and
inevitable danger to the voting process posed by
election surveys. They point out that no similar
restriction is imposed on politicians from
explaining their opinion or on newspapers or
broadcast media from writing and publishing
articles concerning political issues up to the day
of the election. Consequently, they contend that
there is no reason for ordinary voters to be
denied access to the results of election surveys
which are relatively objective. ETHaDC
Respondent Commission on Elections justifies the
restrictions in 5.4 of R.A. No. 9006 as necessary
to prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous
surveys just before the election. It contends that
(1) the prohibition on the publication of election
survey results during the period proscribed by
law bears a rational connection to the objective of
the law, i.e., the prevention of the debasement of
the electoral process resulting from manipulated
surveys, bandwagon effect, and absence of reply;
(2) it is narrowly tailored to meet the "evils"
sought to be prevented; and (3) the impairment
of freedom of expression is minimal, the
restriction being limited both in duration, i.e., the
last 15 days before the national election and the
last 7 days before a local election, and in scope
as it does not prohibit election survey results but
only require timeliness. Respondent claims that in
National Press Club v. COMELEC, 1 a total ban on
political advertisements, with candidates being
merely allocated broadcast time during the so-
called COMELEC space or COMELEC hour, was
upheld by this Court. In contrast, according to
respondent, it states that the prohibition in 5.4
of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of
R.A. No. 9006 constitutes an unconstitutional
44 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
abridgment of freedom of speech, expression,
and the press.
To be sure, 5.4 lays a prior restraint on freedom
of speech, expression, and the press by
prohibiting the publication of election survey
results affecting candidates within the prescribed
periods of fifteen (15) days immediately
preceding a national election and seven (7) days
before a local election. Because of the preferred
status of the constitutional rights of speech,
expression, and the press, such a measure is
vitiated by a weighty presumption of invalidity. 2
Indeed, "any system of prior restraints of
expression comes to this Court bearing a heavy
presumption against its constitutional validity. . . .
The Government 'thus carries a heavy burden of
showing justification for the enforcement of such
restraint.'" 3 There is thus a reversal of the
normal presumption of validity that inheres in
every legislation.
Nor may it be argued that because of Art. IX-C, 4
of the Constitution, which gives the COMELEC
supervisory power to regulate the enjoyment or
utilization of franchise for the operation of media
of communication, no presumption of invalidity
attaches to a measure like 5.4. For as we have
pointed out in sustaining the ban on media
political advertisements, the grant of power to
the COMELEC under Art. IX-C, 4 is limited to
ensuring "equal opportunity, time, space, and the
right to reply" as well as uniform and reasonable
rates of charges for the use of such media
facilities for "public information campaigns and
forums among candidates." 4 This Court stated:
The technical effect of Article IX (C) (4) of the
Constitution may be seen to be that no
presumption of invalidity arises in respect of
exercises of supervisory or regulatory authority
on the part of the Comelec for the purpose of
securing equal opportunity among candidates for
political office, although such supervision or
regulation may result in some limitation of the
rights of free speech and free press. 5
MR. JUSTICE KAPUNAN dissents. He rejects as
inappropriate the test of clear and present danger
for determining the validity of 5.4. Indeed, as
has been pointed out in Osmea v. COMELEC, 6
this test was originally formulated for the criminal
law and only later appropriated for free speech
cases. Hence, while it may be useful for
determining the validity of laws dealing with
inciting to sedition or incendiary speech, it may
not be adequate for such regulations as the one
in question. For such a test is concerned with
questions of the gravity and imminence of the
danger as basis for curtailing free speech, which
is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to
engage in a form of balancing by "weighing and
balancing the circumstances to determine
whether public interest [in free, orderly, honest,
peaceful and credible elections] is served by the
regulation of the free enjoyment of the rights"
(page 7). After canvassing the reasons for the
prohibition, i.e., to prevent last-minute pressure
on voters, the creation of bandwagon effect to
favor candidates, misinformation, the "junking" of
weak and "losing" candidates by their parties,
and the form of election cheating called "dagdag-
bawas" and invoking the State's power to
supervise media of information during the
election period (pages 11-16), the dissenting
opinion simply concludes: ACTEHI
Viewed in the light of the legitimate and
significant objectives of Section 5.4, it may be
seen that its limiting impact on the rights of free
speech and of the press is not unduly repressive
or unreasonable. Indeed, it is a mere restriction,
not an absolute prohibition, on the publication of
election surveys. It is limited in duration; it
applies only during the period when the voters
are presumably contemplating whom they should
elect and when they are most susceptible to such
unwarranted persuasion. These surveys may be
published thereafter. (Pages 17-18)
The dissent does not, however, show why, on
balance, these considerations should outweigh
the value of freedom of expression. Instead,
reliance is placed on Art. IX-C, 4. As already
stated, the purpose of Art. IX-C, 4 is to "ensure
equal opportunity, time, and space and the right
of reply, including reasonable, equal rates
therefor for public information campaigns and
forums among candidates." Hence the validity of
the ban on media advertising. It is noteworthy
that R.A. No. 9006, 14 has lifted the ban and
now allows candidates to advertise their
candidacies in print and broadcast media. Indeed,
to sustain the ban on the publication of survey
results would sanction the censorship of all
speaking by candidates in an election on the
ground that the usual bombasts and hyperbolic
claims made during the campaigns can confuse
voters and thus debase the electoral process.
In sum, the dissent has engaged only in a
balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the
challenged legislation and leaves freedom of
speech, expression, and the press with little
protection. For anyone who can bring a plausible
justification forward can easily show a rational
connection between the statute and a legitimate
governmental purpose. In contrast, the balancing
of interest undertaken by then Justice Castro in
Gonzales v. COMELEC, 7 from which the dissent in
this case takes its cue, was a strong one resulting
in his conclusion that 50-B of R.A. No. 4880,
which limited the period of election campaign and
partisan political activity, was an unconstitutional
abridgment of freedom of expression.
Nor can the ban on election surveys be justified
on the ground that there are other countries
78, according to the Solicitor General, while the
dissent cites 28 which similarly impose
restrictions on the publication of election surveys.
At best this survey is inconclusive. It is
noteworthy 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,
45 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
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 It 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 suppression 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 unrelated 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 makers. In effect, 5.4 shows a bias for a
particular subject matter, if not viewpoint, by
preferring personal opinion to statistical results.
The constitutional guarantee of freedom of
expression means that "the government has no
power to restrict expression because of its
message, its ideas, its subject matter, or its
content." 11 The inhibition of speech should be
upheld only if the expression falls within one of
the few unprotected categories dealt with in
Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly
limited classes of speech, the prevention and
punishment of which have never been thought to
raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous,
and the insulting or 'fighting' words those
which by their very utterance inflict injury or tend
to incite an immediate breach of the peace.
[S]uch utterances are no essential part of any
exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may
be derived from them is clearly outweighed by
the social interest in order and morality.
Nor is there justification for the prior restraint
which 5.4 lays on protected speech. In Near v.
Minnesota, 13 it was held:
[The] protection even as to previous restraint is
not absolutely unlimited. But the limitation has
been recognized only in exceptional cases. . . . No
one would question but that a government might
prevent actual obstruction to its recruiting service
or the publication of the sailing dates of
transports or the number and location of troops.
On similar grounds, the primary requirements of
decency may be enforced against obscene
publications. The security of the community life
may be protected against incitements to acts of
violence and the overthrow by force of orderly
government . . . . ACcaET
Thus, contrary to the claim of the Solicitor
General, the prohibition imposed by 5.4 cannot
be justified on the ground that it is only for a
limited period and is only incidental. The
prohibition may be for a limited time, but the
curtailment of the right of expression is direct,
absolute, and substantial. It constitutes a total
suppression of a category of speech and is not
made less so because it is only for a period of
fifteen (15) days immediately before a national
election and seven (7) days immediately before a
local election.
This sufficiently distinguishes 5.4 from R.A. No.
6646, 11(b), which this Court found to be valid in
National Press Club v. COMELEC 14 and Osmea
v. COMELEC. 15 For the ban imposed by R.A. No.
6646, 11(b) is not only authorized by a specific
constitutional provision, 16 but it also provided an
alternative so that, as this Court pointed out in
Osmea, there was actually no ban but only a
substitution of media advertisements by the
COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought
to be promoted is unrelated to the suppression of
speech and the resulting restriction of free
expression is only incidental, 5.4 nonetheless
fails to meet criterion [4] of the O'Brien test,
namely, that the restriction be not greater than is
necessary to further the governmental interest.
As already stated, 5.4 aims at the prevention of
last-minute pressure on voters, the creation of
bandwagon effect, "junking" of weak or "losing"
candidates, and resort to the form of election
cheating called "dagdag-bawas." Praiseworthy as
these aims of the regulation might be, they
cannot be attained at the sacrifice of the
fundamental right of expression, when such aim
can be more narrowly pursued by punishing
unlawful acts, rather than speech because of
apprehension that such speech creates the
danger of such evils. Thus, under the
Administrative Code of 1987, 17 the COMELEC is
given the power:
46 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
To stop any illegal activity, or confiscate, tear
down, and stop any unlawful, libelous, misleading
or false election propaganda, after due notice and
hearing.
This is surely a less restrictive means than the
prohibition contained in 5.4. Pursuant to this
power of the COMELEC, it can confiscate bogus
survey results calculated to mislead voters.
Candidates can have their own surveys
conducted. No right of reply can be invoked by
others. No principle of equality is involved. It is a
free market to which each candidate brings his
ideas. As for the purpose of the law to prevent
bandwagon effects, it is doubtful whether the
Government can deal with this natural-enough
tendency of some voters. Some voters want to be
identified with the "winners." Some are
susceptible to the herd mentality. Can these be
legitimately prohibited by suppressing the
publication of survey results which are a form of
expression? It has been held that "[mere]
legislative preferences or beliefs respecting
matters of public convenience may well support
regulation directed at other personal activities,
but be insufficient to justify such as diminishes
the exercise of rights so vital to the maintenance
of democratic institutions." 18
To summarize then, we hold that 5.4 is invalid
because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total
suppression of a category of expression even
though such suppression is only for a limited
period, and (3) the governmental interest sought
to be promoted can be achieved by means other
than the suppression of freedom of expression.
On the other hand, the COMELEC contends that
under Art. IX-A, 7 of the Constitution, its
decisions, orders, or resolutions may be reviewed
by this Court only by certiorari. The flaws in this
argument is that it assumes that its Resolution
3636, dated March 1, 2001 is a "decision, order,
or resolution" within the meaning of Art. IX-A, 7.
Indeed, counsel for COMELEC maintains 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 the COMELEC's claim that this petition
for prohibition is inappropriate. Prohibition has
been found appropriate for testing the
constitutionality of various election laws, rules,
and regulations. 19
WHEREFORE, the petition for prohibition is
GRANTED and 5.4 of R.A. No. 9006 and 24(h) of
COMELEC Resolution 3636, dated March 1, 2001,
are declared unconstitutional.
SO ORDERED.
Davide, Jr., C.J., Vitug and Gonzaga-Reyes, JJ.,
concur.
Bellosillo, Pardo and Sandoval-Gutierrez, JJ., join
in the dissent of J. Kapunan.
Melo, J., Pls. see concurring opinion.
Puno, J., Pls. see concurring opinion.
Kapunan, J., see dissenting opinion.
Panganiban, J., Please see concurring opinion.
Quisumbing, Buena and De Leon, Jr., JJ., are on
leave.
Ynares-Santiago, J., I hereby certify that J.
Santiago joins the decision of Kapunan, J. (signed
by C.J. Davide)
(Chavez v. Gonzales, G.R. No. 168338,
February 15, 2008)
EN BANC
[G.R. No. 168338. February 15, 2008.]
FRANCISCO CHAVEZ, petitioner, vs. RAUL M.
GONZALES, in his capacity as the Secretary of
the Department of Justice; and NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC),
respondents.
DECISION
PUNO, C.J p:
A. Precis
In this jurisdiction, it is established that freedom
of the press is crucial and so inextricably woven
into the right to free speech and free expression,
that any attempt to restrict it must be met with
an examination so critical that only a danger that
is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to
uphold this cherished freedom. We have struck
down laws and issuances meant to curtail this
right, as in Adiong v. COMELEC, 1 Burgos v. Chief
of Staff, 2 Social Weather Stations v. COMELEC, 3
and Bayan v. Executive Secretary Ermita. 4 When
on its face, it is clear that a governmental act is
nothing more than a naked means to prevent the
free exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred
a year after the 2004 national and local elections.
On June 5, 2005, Press Secretary Ignacio Bunye
told reporters that the opposition was planning to
destabilize the administration by releasing an
audiotape of a mobile phone conversation
allegedly between the President of the
Philippines, Gloria Macapagal Arroyo, and a high-
ranking official of the Commission on Elections
(COMELEC). The conversation was audiotaped
allegedly through wire-tapping. 5 Later, in a
Malacaang press briefing, Secretary Bunye
produced two versions of the tape, one
supposedly the complete version, and the other,
a spliced, "doctored" or altered version, which
would suggest that the President had instructed
the COMELEC official to manipulate the election
results in the President's favor. 6 It seems that
Secretary Bunye admitted that the voice was that
of President Arroyo, but subsequently made a
retraction. 7
2. On June 7, 2005, former counsel of deposed
President Joseph Estrada, Atty. Alan Paguia,
subsequently released an alleged authentic tape
recording of the wiretap. Included in the tapes
were purported conversations of the President,
the First Gentleman Jose Miguel Arroyo, COMELEC
Commissioner Garcillano, and the late Senator
Barbers. 8
47 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
3. On June 8, 2005, respondent Department of
Justice (DOJ) Secretary Raul Gonzales warned
reporters that those who had copies of the
compact disc (CD) and those broadcasting or
publishing its contents could be held liable under
the Anti-Wiretapping Act. These persons included
Secretary Bunye and Atty. Paguia. He also stated
that persons possessing or airing said tapes were
committing a continuing offense, subject to arrest
by anybody who had personal knowledge if the
crime was committed or was being committed in
their presence. 9
4. On June 9, 2005, in another press briefing,
Secretary Gonzales ordered the National Bureau
of Investigation (NBI) to go after media
organizations "found to have caused the spread,
the playing and the printing of the contents of a
tape" of an alleged wiretapped conversation
involving the President about fixing votes in the
2004 national elections. Gonzales said that he
was going to start with Inq7.net, a joint venture
between the Philippine Daily Inquirer and GMA7
television network, because by the very nature of
the Internet medium, it was able to disseminate
the contents of the tape more widely. He then
expressed his intention of inviting the editors and
managers of Inq7.net and GMA7 to a probe, and
supposedly declared, "I [have] asked the NBI to
conduct a tactical interrogation of all concerned."
10
5. On June 11, 2005, the NTC issued this press
release: 11
NTC GIVES FAIR WARNING TO RADIO AND
TELEVISION OWNERS/OPERATORS TO OBSERVE
ANTI-WIRETAPPING LAW AND PERTINENT
CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the country's unusual
situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio
stations and television network owners/operators
that the conditions of the authorization and
permits issued to them by Government like the
Provisional Authority and/or Certificate of
Authority explicitly provides that said companies
shall not use [their] stations for the broadcasting
or telecasting of false information or willful
misrepresentation. Relative thereto, it has come
to the attention of the [NTC] that certain
personalities are in possession of alleged taped
conversations which they claim involve the
President of the Philippines and a Commissioner
of the COMELEC regarding supposed violation of
election laws.
These personalities have admitted that the taped
conversations are products of illegal wiretapping
operations.
Considering that these taped conversations have
not been duly authenticated nor could it be said
at this time that the tapes contain an accurate or
truthful representation of what was recorded
therein, it is the position of the [NTC] that the
continuous airing or broadcast of the said taped
conversations by radio and television stations is a
continuing violation of the Anti-Wiretapping Law
and the conditions of the Provisional Authority
and/or Certificate of Authority issued to these
radio and television stations. It has been
subsequently established that the said tapes are
false and/or fraudulent after a prosecution or
appropriate investigation, the concerned radio
and television companies are hereby warned that
their broadcast/airing of such false information
and/or willful misrepresentation shall be just
cause for the suspension, revocation and/or
cancellation of the licenses or authorizations
issued to the said companies.
In addition to the above, the [NTC] reiterates the
pertinent NTC circulars on program standards to
be observed by radio and television stations. NTC
Memorandum Circular 111-12-85 explicitly states,
among others, that "all radio broadcasting and
television stations shall, during any broadcast or
telecast, cut off from the air the speech, play, act
or scene or other matters being broadcast or
telecast the tendency thereof is to disseminate
false information or such other willful
misrepresentation, or to propose and/or incite
treason, rebellion or sedition." The foregoing
directive had been reiterated by NTC
Memorandum Circular No. 22-89, which, in
addition thereto, prohibited radio, broadcasting
and television stations from using their stations
to broadcast or telecast any speech, language or
scene disseminating false information or willful
misrepresentation, or inciting, encouraging or
assisting in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the
requirements of due process, to apply with full
force the provisions of said Circulars and their
accompanying sanctions on erring radio and
television stations and their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the
Board of Directors of the Kapisanan ng mga
Brodkaster sa Pilipinas (KBP). NTC allegedly
assured the KBP that the press release did not
violate the constitutional freedom of speech, of
expression, and of the press, and the right to
information. Accordingly, NTC and KBP issued a
Joint Press Statement which states, among
others, that: 12
NTC respects and will not hinder freedom of the
press and the right to information on matters of
public concern. KBP & its members have always
been committed to the exercise of press freedom
with high sense of responsibility and discerning
judgment of fairness and honesty.
NTC did not issue any MC [Memorandum
Circular] or Order constituting a restraint of press
freedom or censorship. The NTC further denies
and does not intend to limit or restrict the
interview of members of the opposition or free
expression of views.
What is being asked by NTC is that the exercise
of press freedom [be] done responsibly.
KBP has program standards that KBP members
will observe in the treatment of news and public
affairs programs. These include verification of
sources, non-airing of materials that would
constitute inciting to sedition and/or rebellion.
48 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
The KBP Codes also require that no false
statement or willful misrepresentation is made in
the treatment of news or commentaries.
The supposed wiretapped tapes should be
treated with sensitivity and handled responsibly
giving due consideration to the process being
undertaken to verify and validate the authenticity
and actual content of the same."
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of
the Rules of Court against respondents Secretary
Gonzales and the NTC, "praying for the issuance
of the writs of certiorari and prohibition, as
extraordinary legal remedies, to annul void
proceedings, and to prevent the unlawful,
unconstitutional and oppressive exercise of
authority by the respondents." 13
Alleging that the acts of respondents are
violations of the freedom on expression and of
the press, and the right of the people to
information on matters of public concern, 14
petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and
orders of respondents committed or made since
June 6, 2005 until the present that curtail the
public's rights to freedom of expression and of
the press, and to information on matters of public
concern specifically in relation to information
regarding the controversial taped conversion of
President Arroyo and for prohibition of the further
commission of such acts, and making of such
issuances, and orders by respondents. 15
Respondents 16 denied that the acts transgress
the Constitution, and questioned petitioner's legal
standing to file the petition. Among the
arguments they raised as to the validity of the
"fair warning" issued by respondent NTC, is that
broadcast media enjoy lesser constitutional
guarantees compared to print media, and the
warning was issued pursuant to the NTC's
mandate to regulate the telecommunications
industry. 17 It was also stressed that "most of the
[television] and radio stations continue, even to
this date, to air the tapes, but of late within the
parameters agreed upon between the NTC and
KBP." 18
D. THE PROCEDURAL THRESHOLD: LEGAL
STANDING
To be sure, the circumstances of this case make
the constitutional challenge peculiar. Petitioner,
who is not a member of the broadcast media,
prays that we strike down the acts and
statements made by respondents as violations of
the right to free speech, free expression and a
free press. For another, the recipients of the press
statements have not come forward neither
intervening nor joining petitioner in this action.
Indeed, as a group, they issued a joint statement
with respondent NTC that does not complain
about restraints on freedom of the press.
It would seem, then, that petitioner has not met
the requisite legal standing, having failed to
allege "such a personal stake in the outcome of
the controversy as to assure that concrete
adverseness which sharpens the presentation of
issues upon which the Court so largely depends
for illumination of difficult constitutional
questions." 19
But as early as half a century ago, we have
already held that where serious constitutional
questions are involved, "the transcendental
importance to the public of these cases demands
that they be settled promptly and definitely,
brushing aside if we must, technicalities of
procedure." 20 Subsequently, this Court has
repeatedly and consistently refused to wield
procedural barriers as impediments to its
addressing and resolving serious legal questions
that greatly impact on public interest, 21 in
keeping with the Court's duty under the 1987
Constitution to determine whether or not other
branches of government have kept themselves
within the limits of the Constitution and the laws
and that they have not abused the discretion
given to them.
Thus, in line with the liberal policy of this Court
on locus standi when a case involves an issue of
overarching significance to our society, 22 we
therefore brush aside technicalities of procedure
and take cognizance of this petition, 23 seeing as
it involves a challenge to the most exalted of all
the civil rights, the freedom of expression. The
petition raises other issues like the extent of the
right to information of the public. It is
fundamental, however, that we need not address
all issues but only the most decisive one which in
the case at bar is whether the acts of the
respondents abridge freedom of speech and of
the press.
But aside from the primordial issue of
determining whether free speech and freedom of
the press have been infringed, the case at bar
also gives this Court the opportunity: (1) to distill
the essence of freedom of speech and of the
press now beclouded by the vagaries of
motherhood statements; (2) to clarify the types of
speeches and their differing restraints allowed by
law; (3) to discuss the core concepts of prior
restraint, content-neutral and content-based
regulations and their constitutional standard of
review; (4) to examine the historical difference in
the treatment of restraints between print and
broadcast media and stress the standard of
review governing both; and (5) to call attention to
the ongoing blurring of the lines of distinction
between print and broadcast media.
E. RE-EXAMINING THE LAW ON FREEDOM OF
SPEECH,
OF EXPRESSION AND OF THE PRESS
No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition
the government for redress of grievances. 24
Freedom of expression has gained recognition as
a fundamental principle of every democratic
government, and given a preferred right that
stands on a higher level than substantive
economic freedom or other liberties. The cognate
rights codified by Article III, Section 4 of the
Constitution, copied almost verbatim from the
First Amendment of the U.S. Bill of Rights, 25
were considered the necessary consequence of
republican institutions and the complement of
49 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
free speech. 26 This preferred status of free
speech has also been codified at the international
level, its recognition now enshrined in
international law as a customary norm that binds
all nations. 27
In the Philippines, the primacy and high esteem
accorded freedom of expression is a fundamental
postulate of our constitutional system. 28 This
right was elevated to constitutional status in the
1935, the 1973 and the 1987 Constitutions,
reflecting our own lesson of history, both political
and legal, that freedom of speech is an
indispensable condition for nearly every other
form of freedom. 29 Moreover, our history shows
that the struggle to protect the freedom of
speech, expression and the press was, at bottom,
the struggle for the indispensable preconditions
for the exercise of other freedoms. 30 For it is
only when the people have unbridled access to
information and the press that they will be
capable of rendering enlightened judgments. In
the oft-quoted words of Thomas Jefferson, we
cannot both be free and ignorant.
E.1. ABSTRACTION OF FREE SPEECH
Surrounding the freedom of speech clause are
various concepts that we have adopted as part
and parcel of our own Bill of Rights provision on
this basic freedom. 31 What is embraced under
this provision was discussed exhaustively by the
Court in Gonzales v. Commission on Elections, 32
in which it was held:
. . . At the very least, free speech and free press
may be identified with the liberty to discuss
publicly and truthfully any matter of public
interest without censorship and punishment.
There is to be no previous restraint on the
communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or
action for damages, or contempt proceedings
unless there be a clear and present danger of
substantive evil that Congress has a right to
prevent. 33
Gonzales further explained that the vital need of
a constitutional democracy for freedom of
expression is undeniable, whether as a means of
assuring individual self-fulfillment; of attaining
the truth; of assuring participation by the people
in social, including political, decision-making; and
of maintaining the balance between stability and
change. 34 As early as the 1920s, the trend as
reflected in Philippine and American decisions
was to recognize the broadest scope and assure
the widest latitude for this constitutional
guarantee. The trend represents a profound
commitment to the principle that debate on
public issue should be uninhibited, robust, and
wide-open. 35
Freedom of speech and of the press means
something more than the right to approve
existing political beliefs or economic
arrangements, to lend support to official
measures, and to take refuge in the existing
climate of opinion on any matter of public
consequence. 36 When atrophied, the right
becomes meaningless. 37 The right belongs as
well if not more to those who question, who
do not conform, who differ. 38 The ideas that may
be expressed under this freedom are confined not
only to those that are conventional or acceptable
to the majority. To be truly meaningful, freedom
of speech and of the press should allow and even
encourage the articulation of the unorthodox
view, though it be hostile to or derided by others;
or though such view "induces a condition of
unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger." 39 To
paraphrase Justice Holmes, it is freedom for the
thought that we hate, no less than for the
thought that agrees with us. 40
The scope of freedom of expression is so broad
that it extends protection to nearly all forms of
communication. It protects speech, print and
assembly regarding secular as well as political
causes, and is not confined to any particular field
of human interest. The protection covers myriad
matters of public interest or concern embracing
all issues, about which information is needed or
appropriate, so as to enable members of society
to cope with the exigencies of their period. The
constitutional protection assures the broadest
possible exercise of free speech and free press for
religious, political, economic, scientific, news, or
informational ends, inasmuch as the
Constitution's basic guarantee of freedom to
advocate ideas is not confined to the expression
of ideas that are conventional or shared by a
majority.
The constitutional protection is not limited to the
exposition of ideas. The protection afforded free
speech extends to speech or publications that are
entertaining as well as instructive or informative.
Specifically, in Eastern Broadcasting Corporation
(DYRE) v. Dans, 41 this Court stated that all forms
of media, whether print or broadcast, are entitled
to the broad protection of the clause on freedom
of speech and of expression.
While all forms of communication are entitled to
the broad protection of freedom of expression
clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than
the freedom accorded to newspapers and other
print media, as will be subsequently discussed.
E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS
OF FREE SPEECH
From the language of the specific constitutional
provision, it would appear that the right to free
speech and a free press is not susceptible of any
limitation. But the realities of life in a complex
society preclude a literal interpretation of the
provision prohibiting the passage of a law that
would abridge such freedom. For freedom of
expression is not an absolute, 42 nor is it an
"unbridled license that gives immunity for every
possible use of language and prevents the
punishment of those who abuse this freedom."
Thus, all speech are not treated the same. Some
types of speech may be subjected to some
regulation by the State under its pervasive police
power, in order that it may not be injurious to the
equal right of others or those of the community or
society. 43 The difference in treatment is
expected because the relevant interests of one
type of speech, e.g., political speech, may vary
from those of another, e.g., obscene speech.
Distinctions have therefore been made in the
treatment, analysis, and evaluation of the
50 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
permissible scope of restrictions on various
categories of speech. 44 We have ruled, for
example, that in our jurisdiction slander or libel,
lewd and obscene speech, as well as "fighting
words" are not entitled to constitutional
protection and may be penalized. 45
Moreover, the techniques of reviewing alleged
restrictions on speech (overbreadth, vagueness,
and so on) have been applied differently to each
category, either consciously or unconsciously. 46
A study of free speech jurisprudence whether
here or abroad will reveal that courts have
developed different tests as to specific types or
categories of speech in concrete situations; i.e.,
subversive speech; obscene speech; the speech
of the broadcast media and of the traditional print
media; libelous speech; speech affecting
associational rights; speech before hostile
audiences; symbolic speech; speech that affects
the right to a fair trial; and speech associated
with rights of assembly and petition. 47
Generally, restraints on freedom of speech and
expression are evaluated by either or a
combination of three tests, i.e., (a) the dangerous
tendency doctrine which permits limitations on
speech once a rational connection has been
established between the speech restrained and
the danger contemplated; 48 (b) the balancing of
interests tests, used as a standard when courts
need to balance conflicting social values and
individual interests, and requires a conscious and
detailed consideration of the interplay of interests
observable in a given situation of type of
situation; 49 and (c) the clear and present danger
rule which rests on the premise that speech may
be restrained because there is substantial danger
that the speech will likely lead to an evil the
government has a right to prevent. This rule
requires that the evil consequences sought to be
prevented must be substantive, "extremely
serious and the degree of imminence extremely
high." 50
As articulated in our jurisprudence, we have
applied either the dangerous tendency doctrine
or clear and present danger testto resolve free
speech challenges. More recently, we have
concluded that we have generally adhered to the
clear and present danger test. 51
E.3. IN FOCUS: FREEDOM OF THE PRESS
Much has been written on the philosophical basis
of press freedom as part of the larger right of free
discussion and expression. Its practical
importance, though, is more easily grasped. It is
the chief source of information on current affairs.
It is the most pervasive and perhaps most
powerful vehicle of opinion on public questions. It
is the instrument by which citizens keep their
government informed of their needs, their
aspirations and their grievances. It is the sharpest
weapon in the fight to keep government
responsible and efficient. Without a vigilant press,
the mistakes of every administration would go
uncorrected and its abuses unexposed. As Justice
Malcolm wrote in United States v. Bustos: 52
The interest of society and the maintenance of
good government demand a full discussion of
public affairs. Complete liberty to comment on
the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust
accusation; the wound can be assuaged with the
balm of clear conscience.
Its contribution to the public weal makes freedom
of the press deserving of extra protection. Indeed,
the press benefits from certain ancillary rights.
The productions of writers are classified as
intellectual and proprietary. Persons who interfere
or defeat the freedom to write for the press or to
maintain a periodical publication are liable for
damages, be they private individuals or public
officials.
E.4. ANATOMY OF RESTRICTIONS: PRIOR
RESTRAINT, CONTENT-NEUTRAL AND CONTENT-
BASED REGULATIONS
Philippine jurisprudence, even as early as the
period under the 1935 Constitution, has
recognized four aspects of freedom of the press.
These are (1) freedom from prior restraint; (2)
freedom from punishment subsequent to
publication; 53 (3) freedom of access to
information; 54 and (4) freedom of circulation. 55
Considering that petitioner has argued that
respondents' press statement constitutes a form
of impermissible prior restraint, a closer scrutiny
of this principle is in order, as well as its sub-
specie of content-based (as distinguished from
content-neutral) regulations.
At this point, it should be noted that respondents
in this case deny that their acts constitute prior
restraints. This presents a unique tinge to the
present challenge, considering that the cases in
our jurisdiction involving prior restrictions on
speech never had any issue of whether the
governmental act or issuance actually constituted
prior restraint. Rather, the determinations were
always about whether the restraint was justified
by the Constitution.
Be that as it may, the determination in every
case of whether there is an impermissible
restraint on the freedom of speech has always
been based on the circumstances of each case,
including the nature of the restraint. And in its
application in our jurisdiction, the parameters of
this principle have been etched on a case-to-case
basis, always tested by scrutinizing the
governmental issuance or act against the
circumstances in which they operate, and then
determining the appropriate test with which to
evaluate.
Prior restraint refers to official governmental
restrictions on the press or other forms of
expression in advance of actual publication or
dissemination. 56 Freedom from prior restraint is
largely freedom from government censorship of
publications, whatever the form of censorship,
and regardless of whether it is wielded by the
executive, legislative or judicial branch of the
government. Thus, it precludes governmental
acts that required approval of a proposal to
publish; licensing or permits as prerequisites to
51 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
publication including the payment of license
taxes for the privilege to publish; and even
injunctions against publication. Even the closure
of the business and printing offices of certain
newspapers, resulting in the discontinuation of
their printing and publication, are deemed as
previous restraint or censorship. 57 Any law or
official that requires some form of permission to
be had before publication can be made, commits
an infringement of the constitutional right, and
remedy can be had at the courts.
Given that deeply ensconced in our fundamental
law is the hostility against all prior restraints on
speech, and any act that restrains speech is
presumed invalid, 58 and "any act that restrains
speech is hobbled by the presumption of
invalidity and should be greeted with furrowed
brows," 59 it is important to stress not all prior
restraints on speech are invalid. Certain previous
restraints may be permitted by the Constitution,
but determined only upon a careful evaluation of
the challenged act as against the appropriate test
by which it should be measured against.
Hence, it is not enough to determine whether the
challenged act constitutes some form of restraint
on freedom of speech. A distinction has to be
made whether the restraint is (1) a content-
neutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely
controls the time, place or manner, and under
well defined standards; 60 or (2) a content-based
restraint or censorship, i.e., the restriction is
based on the subject matter of the utterance or
speech. 61 The cast of the restriction determines
the test by which the challenged act is assayed
with.
When the speech restraints take the form of a
content-neutral regulation, only a substantial
governmental interest is required for its validity.
62 Because regulations of this type are not
designed to suppress any particular message,
they are not subject to the strictest form of
judicial scrutiny but an intermediate approach
somewhere between the mere rationality that is
required of any other law and the compelling
interest standard applied to content-based
restrictions. 63 The test is called intermediate
because the Court will not merely rubberstamp
the validity of a law but also require that the
restrictions be narrowly-tailored to promote an
important or significant governmental interest
that is unrelated to the suppression of expression.
The intermediate approach has been formulated
in this manner:
A governmental regulation is sufficiently justified
if it is within the constitutional power of the
Government, if it furthers an important or
substantial governmental interest; if the
governmental interest is unrelated to the
suppression of free expression; and if the incident
restriction on alleged [freedom of speech &
expression] is no greater than is essential to the
furtherance of that interest. 64
On the other hand, a governmental action that
restricts freedom of speech or of the press based
on content is given the strictest scrutiny in light
of its inherent and invasive impact. Only when
the challenged act has overcome the clear and
present danger rule will it pass constitutional
muster, 65 with the government having the
burden of overcoming the presumed
unconstitutionality.
Unless the government can overthrow this
presumption, the content-based restraint will be
struck down. 66
With respect to content-based restrictions, the
government must also show the type of harm the
speech sought to be restrained would bring about
especially the gravity and the imminence of
the threatened harm otherwise the prior
restraint will be invalid. Prior restraint on speech
based on its content cannot be justified by
hypothetical fears, "but only by showing a
substantive and imminent evil that has taken the
life of a reality already on ground." 67 As
formulated, "the question in every case is
whether the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity
and degree." 68
The regulation which restricts the speech content
must also serve an important or substantial
government interest, which is unrelated to the
suppression of free expression. 69
Also, the incidental restriction on speech must be
no greater than what is essential to the
furtherance of that interest. 70 A restriction that
is so broad that it encompasses more than what
is required to satisfy the governmental interest
will be invalidated. 71 The regulation, therefore,
must be reasonable and narrowly drawn to fit the
regulatory purpose, with the least restrictive
means undertaken. 72
Thus, when the prior restraint partakes of a
content-neutral regulation, it is subjected to an
intermediate review. A content-based regulation,
73 however, bears a heavy presumption of
invalidity and is measured against the clear and
present danger rule. The latter will pass
constitutional muster only if justified by a
compelling reason, and the restrictions imposed
are neither overbroad nor vague. 74
Applying the foregoing, it is clear that the
challenged acts in the case at bar need to be
subjected to the clear and present danger rule, as
they are content-based restrictions. The acts of
respondents focused solely on but one object a
specific content fixed as these were on the
alleged taped conversations between the
President and a COMELEC official. Undoubtedly
these did not merely provide regulations as to the
time, place or manner of the dissemination of
speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast
Media
Finally, comes respondents' argument that the
challenged act is valid on the ground that
broadcast media enjoys free speech rights that
are lesser in scope to that of print media. We next
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explore and test the validity of this argument,
insofar as it has been invoked to validate a
content-based restriction on broadcast media.
The regimes presently in place for each type of
media differ from one other. Contrasted with the
regime in respect of books, newspapers,
magazines and traditional printed matter,
broadcasting, film and video have been subjected
to regulatory schemes.
The dichotomy between print and broadcast
media traces its origins in the United States.
There, broadcast radio and television have been
held to have limited First Amendment protection,
75 and U.S. Courts have excluded broadcast
media from the application of the "strict scrutiny"
standard that they would otherwise apply to
content-based restrictions. 76 According to U.S.
Courts, the three major reasons why broadcast
media stands apart from print media are: (a) the
scarcity of the frequencies by which the medium
operates [i.e., airwaves are physically limited
while print medium may be limitless]; 77 (b) its
"pervasiveness" as a medium; and (c) its unique
accessibility to children. 78 Because cases
involving broadcast media need not follow
"precisely the same approach that [U.S. courts]
have applied to other media," nor go "so far as to
demand that such regulations serve 'compelling'
government interests," 79 they are decided on
whether the "governmental restriction" is
narrowly tailored to further a substantial
governmental interest," 80 or the intermediate
test.
As pointed out by respondents, Philippine
jurisprudence has also echoed a differentiation in
treatment between broadcast and print media.
Nevertheless, a review of Philippine case law on
broadcast media will show that as we have
deviated with the American conception of the Bill
of Rights 81 we likewise did not adopt en
masse the U.S. conception of free speech as it
relates to broadcast media, particularly as to
which test would govern content-based prior
restraints.
Our cases show two distinct features of this
dichotomy. First, the difference in treatment, in
the main, is in the regulatory scheme applied to
broadcast media that is not imposed on
traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity,
pornography, seditious and inciting speech), or is
based on a compelling government interest that
also has constitutional protection, such as
national security or the electoral process.
Second, regardless of the regulatory schemes
that broadcast media is subjected to, the Court
has consistently held that the clear and present
danger test applies to content-based restrictions
on media, without making a distinction as to
traditional print or broadcast media.
The distinction between broadcast and traditional
print media was first enunciated in Eastern
Broadcasting Corporation (DYRE) v. Dans, 82
wherein it was held that "[a]ll forms of media,
whether print or broadcast, are entitled to the
broad protection of the freedom of speech and
expression clause. The test for limitations on
freedom of expression continues to be the clear
and present danger rule . . ." 83
Dans was a case filed to compel the reopening of
a radio station which had been summarily closed
on grounds of national security. Although the
issue had become moot and academic because
the owners were no longer interested to reopen,
the Court still proceeded to do an analysis of the
case and made formulations to serve as
guidelines for all inferior courts and bodies
exercising quasi-judicial functions. Particularly,
the Court made a detailed exposition as to what
needs be considered in cases involving broadcast
media. Thus: 84
xxx xxx xxx
(3) All forms of media, whether print or
broadcast, are entitled to the broad protection of
the freedom of speech and expression clause.
The test for limitations on freedom of expression
continues to be the clear and present danger
rule, that words are used in such circumstances
and are of such a nature as to create a clear and
present danger that they will bring about the
substantive evils that the lawmaker has a right to
prevent, In his Constitution of the Philippines (2nd
Edition, pp. 569-570) Chief Justice Enrique M.
Fernando cites at least nine of our decisions
which apply the test. More recently, the clear and
present danger test was applied in J.B.L. Reyes in
behalf of the Anti-Bases Coalition v. Bagatsing. (4)
The clear and present danger test, however, does
not lend itself to a simplistic and all embracing
interpretation applicable to all utterances in all
forums.
Broadcasting has to be licensed. Airwave
frequencies have to be allocated among qualified
users. A broadcast corporation cannot simply
appropriate a certain frequency without regard
for government regulation or for the rights of
others.
All forms of communication are entitled to the
broad protection of the freedom of expression
clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat
lesser in scope than the freedom accorded to
newspaper and print media.
The American Court in Federal Communications
Commission v. Pacifica Foundation (438 U.S. 726),
confronted with a patently offensive and indecent
regular radio program, explained why radio
broadcasting, more than other forms of
communications, receives the most limited
protection from the free expression clause. First,
broadcast media have established a uniquely
pervasive presence in the lives of all citizens,
Material presented over the airwaves confronts
the citizen, not only in public, but in the privacy
of his home. Second, broadcasting is uniquely
accessible to children. Bookstores and motion
picture theaters may be prohibited from making
certain material available to children, but the
same selectivity cannot be done in radio or
television, where the listener or viewer is
constantly tuning in and out.
53 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Similar considerations apply in the area of
national security.
The broadcast media have also established a
uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are
found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast
and regular transportation. Even here, there are
low income masses who find the cost of books,
newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce
enjoy high priorities.
On the other hand, the transistor radio is found
everywhere. The television set is also becoming
universal. Their message may be simultaneously
received by a national or regional audience of
listeners including the indifferent or unwilling who
happen to be within reach of a blaring radio or
television set. The materials broadcast over the
airwaves reach every person of every age,
persons of varying susceptibilities to persuasion,
persons of different I.Q.s and mental capabilities,
persons whose reactions to inflammatory or
offensive speech would be difficult to monitor or
predict. The impact of the vibrant speech is
forceful and immediate. Unlike readers of the
printed work, the radio audience has lesser
opportunity to cogitate analyze, and reject the
utterance.
(5) The clear and present danger test, therefore,
must take the particular circumstances of
broadcast media into account. The supervision of
radio stations-whether by government or through
self-regulation by the industry itself calls for
thoughtful, intelligent and sophisticated handling.
The government has a right to be protected
against broadcasts which incite the listeners to
violently overthrow it. Radio and television may
not be used to organize a rebellion or to signal
the start of widespread uprising. At the same
time, the people have a right to be informed.
Radio and television would have little reason for
existence if broadcasts are limited to bland,
obsequious, or pleasantly entertaining
utterances. Since they are the most convenient
and popular means of disseminating varying
views on public issues, they also deserve special
protection.
(6) The freedom to comment on public affairs is
essential to the vitality of a representative
democracy. In the 1918 case of United States v.
Bustos (37 Phil. 731) this Court was already
stressing that.
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 be too thin-skinned with
reference to comment upon his official acts. Only
thus can the intelligence and dignity of the
individual be exalted.

(7) Broadcast stations deserve the special
protection given to all forms of media by the due
process and freedom of expression clauses of the
Constitution. [Citations omitted]
It is interesting to note that the Court in Dans
adopted the arguments found in U.S.
jurisprudence to justify differentiation of
treatment (i.e., the scarcity, pervasiveness and
accessibility to children), but only after
categorically declaring that "the test for
limitations on freedom of expression continues to
be the clear and present danger rule," for all
forms of media, whether print or broadcast.
Indeed, a close reading of the above-quoted
provisions would show that the differentiation
that the Court in Dans referred to was narrowly
restricted to what is otherwise deemed as
"unprotected speech" (e.g., obscenity, national
security, seditious and inciting speech), or to
validate a licensing or regulatory scheme
necessary to allocate the limited broadcast
frequencies, which is absent in print media. Thus,
when this Court declared in Dans that the
freedom given to broadcast media was
"somewhat lesser in scope than the freedom
accorded to newspaper and print media," it was
not as to what test should be applied, but the
context by which requirements of licensing,
allocation of airwaves, and application of norms
to unprotected speech. 85
In the same year that the Dans case was decided,
it was reiterated in Gonzales v. Katigbak, 86 that
the test to determine free expression challenges
was the clear and present danger, again without
distinguishing the media. 87 Katigbak, strictly
speaking, does not treat of broadcast media but
motion pictures. Although the issue involved
obscenity standards as applied to movies, 88 the
Court concluded its decision with the following
obiter dictum that a less liberal approach would
be used to resolve obscenity issues in television
as opposed to motion pictures:
All that remains to be said is that the ruling is to
be limited to the concept of obscenity applicable
to motion pictures. It is the consensus of this
Court that where television is concerned, a less
liberal approach calls for observance. This is so
because unlike motion pictures where the patrons
have to pay their way, television reaches every
home where there is a set. Children then will
likely be among the avid viewers of the programs
therein shown. . . . . It cannot be denied though
that the State as parens patriae is called upon to
manifest an attitude of caring for the welfare of
the young.
More recently, in resolving a case involving the
conduct of exit polls and dissemination of the
results by a broadcast company, we reiterated
that the clear and present danger rule is the test
we unquestionably adhere to issues that involve
freedoms of speech and of the press. 89
This is not to suggest, however, that the clear
and present danger rule has been applied to all
cases that involve the broadcast media. The rule
applies to all media, including broadcast, but only
54 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
when the challenged act is a content-based
regulation that infringes on free speech,
expression and the press. Indeed, in Osmena v.
COMELEC, 90 which also involved broadcast
media, the Court refused to apply the clear and
present danger rule to a COMELEC regulation of
time and manner of advertising of political
advertisements because the challenged
restriction was content-neutral. 91 And in a case
involving due process and equal protection
issues, the Court in Telecommunications and
Broadcast Attorneys of the Philippines v.
COMELEC 92 treated a restriction imposed on a
broadcast media as a reasonable condition for
the grant of the media's franchise, without going
into which test would apply.
That broadcast media is subject to a regulatory
regime absent in print media is observed also in
other jurisdictions, where the statutory regimes in
place over broadcast media include elements of
licensing, regulation by administrative bodies,
and censorship. As explained by a British author:
The reasons behind treating broadcast and films
differently from the print media differ in a number
of respects, but have a common historical basis.
The stricter system of controls seems to have
been adopted in answer to the view that owing to
their particular impact on audiences, films, videos
and broadcasting require a system of prior
restraints, whereas it is now accepted that books
and other printed media do not. These media are
viewed as beneficial to the public in a number of
respects, but are also seen as possible sources of
harm. 93
Parenthetically, these justifications are now the
subject of debate. Historically, the scarcity of
frequencies was thought to provide a rationale.
However, cable and satellite television have
enormously increased the number of actual and
potential channels. Digital technology will further
increase the number of channels available. But
still, the argument persists that broadcasting is
the most influential means of communication,
since it comes into the home, and so much time
is spent watching television. Since it has a unique
impact on people and affects children in a way
that the print media normally does not, that
regulation is said to be necessary in order to
preserve pluralism. It has been argued further
that a significant main threat to free expression
in terms of diversity comes not from
government, but from private corporate bodies.
These developments show a need for a
reexamination of the traditional notions of the
scope and extent of broadcast media regulation.
94
The emergence of digital technology which has
led to the convergence of broadcasting,
telecommunications and the computer industry
has likewise led to the question of whether the
regulatory model for broadcasting will continue to
be appropriate in the converged environment. 95
Internet, for example, remains largely
unregulated, yet the Internet and the broadcast
media share similarities, 96 and the rationales
used to support broadcast regulation apply
equally to the Internet. 97 Thus, it has been
argued that courts, legislative bodies and the
government agencies regulating media must
agree to regulate both, regulate neither or
develop a new regulatory framework and
rationale to justify the differential treatment. 98
F. The Case At Bar
Having settled the applicable standard to
content-based restrictions on broadcast media,
let us go to its application to the case at bar. To
recapitulate, a governmental action that restricts
freedom of speech or of the press based on
content is given the strictest scrutiny, with the
government having the burden of overcoming the
presumed unconstitutionality by the clear and
present danger rule. This rule applies equally to
all kinds of media, including broadcast media.
This outlines the procedural map to follow in
cases like the one at bar as it spells out the
following: (a) the test; (b) the presumption; (c)
the burden of proof; (d) the party to discharge the
burden; and (e) the quantum of evidence
necessary. On the basis of the records of the case
at bar, respondents who have the burden to show
that these acts do not abridge freedom of speech
and of the press failed to hurdle the clear and
present danger test. It appears that the great evil
which government wants to prevent is the airing
of a tape recording in alleged violation of the anti-
wiretapping law. The records of the case at bar,
however, are confused and confusing, and
respondents' evidence falls short of satisfying the
clear and present danger test. Firstly, the various
statements of the Press Secretary obfuscate the
identity of the voices in the tape recording.
Secondly, the integrity of the taped conversation
is also suspect. The Press Secretary showed to
the public two versions, one supposed to be a
"complete" version and the other, an "altered"
version. Thirdly, the evidence of the respondents
on the who's and the how's of the wiretapping act
is ambivalent, especially considering the tape's
different versions. The identity of the wire-
tappers, the manner of its commission and other
related and relevant proofs are some of the
invisibles of this case. Fourthly, given all these
unsettled facets of the tape, it is even arguable
whether its airing would violate the anti-
wiretapping law.
We rule that not every violation of a law will
justify straitjacketing the exercise of freedom of
speech and of the press. Our laws are of different
kinds and doubtless, some of them provide norms
of conduct which even if violated have only an
adverse effect on a person's private comfort but
does not endanger national security. There are
laws of great significance but their violation, by
itself and without more, cannot support
suppression of free speech and free press. In fine,
violation of law is just a factor, a vital one to be
sure, which should be weighed in adjudging
whether to restrain freedom of speech and of the
press. The totality of the injurious effects of the
violation to private and public interest must be
calibrated in light of the preferred status
accorded by the Constitution and by related
international covenants protecting freedom of
speech and of the press. In calling for a careful
and calibrated measurement of the
circumference of all these factors to determine
compliance with the clear and present danger
test, the Court should not be misinterpreted as
devaluing violations of law. By all means,
55 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
violations of law should be vigorously prosecuted
by the State for they breed their own evil
consequence. But to repeat, the need to prevent
their violation cannot per se trump the exercise of
free speech and free press, a preferred right
whose breach can lead to greater evils. For this
failure of the respondents alone to offer proof to
satisfy the clear and present danger test, the
Court has no option but to uphold the exercise of
free speech and free press. There is no showing
that the feared violation of the anti-wiretapping
law clearly endangers the national security of the
State.
This is not all the faultline in the stance of the
respondents. We slide to the issue of whether the
mere press statements of the Secretary of Justice
and of the NTC in question constitute a form of
content-based prior restraint that has
transgressed the Constitution. In resolving this
issue, we hold that it is not decisive that the
press statements made by respondents were not
reduced in or followed up with formal orders or
circulars. It is sufficient that the press statements
were made by respondents while in the exercise
of their official functions. Undoubtedly,
respondent Gonzales made his statements as
Secretary of Justice, while the NTC issued its
statement as the regulatory body of media. Any
act done, such as a speech uttered, for and on
behalf of the government in an official capacity is
covered by the rule on prior restraint. The
concept of an "act" does not limit itself to acts
already converted to a formal order or official
circular. Otherwise, the non formalization of an
act into an official order or circular will result in
the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts
that should be struck down as they constitute
impermissible forms of prior restraints on the
right to free speech and press.
There is enough evidence of chilling effect of the
complained acts on record. The warnings given to
media came from no less the NTC, a regulatory
agency that can cancel the Certificate of
Authority of the radio and broadcast media. They
also came from the Secretary of Justice, the alter
ego of the Executive, who wields the awesome
power to prosecute those perceived to be
violating the laws of the land. After the warnings,
the KBP inexplicably joined the NTC in issuing an
ambivalent Joint Press Statement. After the
warnings, petitioner Chavez was left alone to
fight this battle for freedom of speech and of the
press. This silence on the sidelines on the part of
some media practitioners is too deafening to be
the subject of misinterpretation.
The constitutional imperative for us to strike
down unconstitutional acts should always be
exercised with care and in light of the distinct
facts of each case. For there are no hard and fast
rules when it comes to slippery constitutional
questions, and the limits and construct of relative
freedoms are never set in stone. Issues revolving
on their construct must be decided on a case to
case basis, always based on the peculiar shapes
and shadows of each case. But in cases where
the challenged acts are patent invasions of a
constitutionally protected right, we should be
swift in striking them down as nullities per se. A
blow too soon struck for freedom is preferred
than a blow too late.
In VIEW WHEREOF, the petition is GRANTED. The
writs of certiorari and prohibition are hereby
issued, nullifying the official statements made by
respondents on June 8, and 11, 2005 warning the
media on airing the alleged wiretapped
conversation between the President and other
personalities, for constituting unconstitutional
prior restraint on the exercise of freedom of
speech and of the press
SO ORDERED.
Ynares-Santiago and Reyes, JJ., concur.
Quisumbing, J., concurs in the result and joins in
the separate concurring opinion of J. Carpio.
Sandoval-Gutierrez, J., please see my separate
concurring opinion.
Carpio, J., see separate concurring opinion.
Austria-Martinez, J., also joins in the separate
opinion of J. Carpio.
Corona, J., joins the dissent of Mr. Justice Nachura.
Carpio-Morales, J., joins in the separate
concurring opinion of J. Carpio.
Azcuna, J., concurs in a separate opinion.
Tinga, J., please see separate opinion (dissenting
and concurring).
Chico-Nazario, J., please see my separate
dissenting opinion.
Velasco, Jr., J., please see separate concurring and
dissenting opinion.
Nachura, J., please see my dissent.
Leonardo-de Castro, J., joins the dissent of Justice
Nazario and Justice Nachura.
(Disini v. The Secretary of Justice, G.R. No.
203335, 203299, 203306, 203359, 203378,
203391, 203407, 203440, 203453, 203454,
203469, 203501, 203509, 203515, 203518,
February 18, 2014)
EN BANC
[G.R. No. 203335. February 18, 2014.]
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI,
LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., petitioners, vs. THE
SECRETARY OF JUSTICE, THE SECRETARY OF
THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE and THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION,
respondents.
[G.R. No. 203299. February 18, 2014.]
LOUIS "BAROK" C. BIRAOGO, petitioner, vs.
NATIONAL BUREAU OF INVESTIGATION and
PHILIPPINE NATIONAL POLICE, respondents.
[G.R. No. 203306. February 18, 2014.]
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG
MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,
BERTENI "TOTO" CAUSING, HERNANI Q. CUARE,
PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO,
ET AL., petitioners, vs. OFFICE OF THE
PRESIDENT, represented by President Benigno
Simeon Aquino III, SENATE OF THE PHILIPPINES,
and HOUSE OF REPRESENTATIVES, respondents.
[G.R. No. 203359. February 18, 2014.]
56 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
SENATOR TEOFISTO DL GUINGONA III, petitioner,
vs. EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, respondents.
[G.R. No. 203378. February 18, 2014.]
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA.
GISELA ORDENES-CASCOLAN, H. HARRY L.
ROQUE, JR., ROMEL R. BAGARES, and GILBERT T.
ANDRES, petitioners, vs. THE EXECUTIVE
SECRETARY, THE DEPARTMENT OF BUDGET AND
MANAGEMENT, THE DEPARTMENT OF JUSTICE,
THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL
POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY,
respondents.
[G.R. No. 203391. February 18, 2014.]
HON. RAYMOND V. PALATINO, HON. ANTONIO
TINIO, VENCER MARI CRISOSTOMO OF
ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS
OF THE PHILIPPINES, ET AL., petitioners, vs.
PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her
capacity as Secretary of Justice, respondents.
[G.R. No. 203407. February 18, 2014.]
BAGONG ALYANSANG MAKABAYAN SECRETARY
GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of
Concerned Artists of the Philippines, ELMER C.
LABOG, Chairperson of Kilusang Mayo Uno,
CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of
COURAGE, JOEL B. MAGLUNSOD, Vice President of
Anakpawis Party-List, LANA R. LINABAN, Secretary
General Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA MATIBAG,
petitioners, vs. BENIGNO SIMEON C. AQUINO III,
President of the Republic of the Philippines,
PAQUITO N. OCHOA, JR., Executive Secretary,
SENATE OF THE PHILIPPINES, represented by
SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE
OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA,
Secretary of the Department of Justice, LOUIS
NAPOLEON C. CASAMBRE, Executive Director of
the Information and Communications Technology
Office, NONNATUS CAESAR R. ROJAS, Director of
the National Bureau of Investigation, D/GEN.
NICANOR A. BARTOLOME, Chief of the Philippine
National Police, MANUEL A. ROXAS II, Secretary of
the Department of the Interior and Local
Government, respondents.
[G.R. No. 203440. February 18, 2014.]
MELENCIO S. STA. MARIA, SEDFREY M.
CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN
JEREMIAH D. QUAN (all of the Ateneo Human
Rights Center), petitioners, vs. HONORABLE
PAQUITO OCHOA in his capacity as Executive
Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE
 MANUEL ROXAS in his capacity as Secretary of
the Department of Interior and Local
Government, The CHIEF of the Philippine National
Police, The DIRECTOR of the National Bureau of
Investigation (all of the Executive Department of
Government), respondents.
[G.R. No. 203453. February 18, 2014.]
NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE
(PPI), CENTER FOR MEDIA FREEDOM AND
RESPONSIBILITY, ROWENA CARRANZA PARAAN,
MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN
ALBURO, ARIEL SEBELLINO AND THE PETITIONERS
IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, petitioners, vs. THE EXECUTIVE
SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, THE DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE
CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL
PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF Republic Act No. 10175,
respondents.
[G.R. No. 203454. February 18, 2014.]
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES,
petitioners, vs. THE HON. SECRETARY OF JUSTICE,
THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, respondents.
[G.R. No. 203469. February 18, 2014.]
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V.
ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS;
MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS
SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR.;
and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON, petitioners, vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in his
capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the
House of Representatives; HON. PAQUITO N.
OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity
as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director,
Information and Communications Technology
Office; HON. NONNATUS CAESAR R. ROJAS, in his
capacity as Director, National Bureau of
Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine
National Police, respondents.
[G.R. No. 203501. February 18, 2014.]
PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
official capacity as President of the Republic of
the Philippines; HON. PAQUITO N. OCHOA, JR., in
57 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
his official capacity as Executive Secretary; HON.
LEILA M. DE LIMA, in her official capacity as
Secretary of Justice; LOUIS NAPOLEON C.
CASAMBRE, in his official capacity as Executive
Director, Information and Communications
Technology Office; NONNATUS CAESAR R. ROJAS,
in his official capacity as Director of the National
Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity
as Chief of the Philippine National Police,
respondents.
[G.R. No. 203509. February 18, 2014.]
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, petitioner, vs. THE EXECUTIVE
SECRETARY PAQUITO OCHOA, JR., respondent.
[G.R. No. 203515. February 18, 2014.]
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his
capacity as President and in his personal
capacity, petitioner, vs. OFFICE OF THE
PRESIDENT, PRES. BENIGNO SIMEON AQUINO III,
DEPARTMENT OF JUSTICE, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE
NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE
PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC
ACT 10175, respondents.
[G.R. No. 203518. February 18, 2014.]
PHILIPPINE INTERNET FREEDOM ALLIANCE,
composed of DAKILA-PHILIPPINE COLLECTIVE FOR
MODERN HEROISM, represented by Leni Velasco,
PARTIDO LAKAS NG MASA, represented by Cesar
S. Melencio, FRANCIS EUSTON R. ACERO, MARLON
ANTHONY ROMASANTA TONSON, TEODORO A.
CASIO, NOEMI LARDIZABAL-DADO, IMELDA
MORALES, JAMES MATTHEW B. MIRAFLOR, JUAN
G.M. RAGRAGIO, MARIA FATIMA A. VILLENA,
MEDARDO M. MANRIQUE, JR., LAUREN DADO,
MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA,
ERASTUS NOEL T. DELIZO, CRISTINA SARAH E.
OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS,
KENNETH KENG, ANA ALEXANDRA C. CASTRO,
petitioners, vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE
EXECUTIVE DIRECTOR OF THE INFORMATION
TECHNOLOGY OFFICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE
CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD
OF THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER,
respondents.
DECISION
ABAD, J p:
These consolidated petitions seek to declare
several provisions of Republic Act (R.A.) 10175,
the Cybercrime Prevention Act of 2012,
unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to
and use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a
system that links him to other computers and
enable him, among other things, to:
1.Access virtual libraries and encyclopedias for all
kinds of information that he needs for research,
study, amusement, upliftment, or pure curiosity;
2.Post billboard-like notices or messages,
including pictures and videos, for the general
public or for special audiences like associates,
classmates, or friends and read postings from
them; SEcTHA
3.Advertise and promote goods or services and
make purchases and payments;
4.Inquire and do business with institutional
entities like government agencies, banks, stock
exchanges, trade houses, credit card companies,
public utilities, hospitals, and schools; and
5.Communicate in writing or by voice with any
person through his e-mail address or telephone.
This is cyberspace, a system that accommodates
millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet.
The cyberspace is a boon to the need of the
current generation for greater information and
facility of communication. But all is not well with
the system since it could not filter out a number
of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes.
One of them can, for instance, avail himself of the
system to unjustly ruin the reputation of another
or bully the latter by posting defamatory
statements against him that people can read.
And because linking with the internet opens up a
user to communications from others, the ill-
motivated can use the cyberspace for committing
theft by hacking into or surreptitiously accessing
his bank account or credit card or defrauding him
through false representations. The wicked can
use the cyberspace, too, for illicit trafficking in
sex or for exposing to pornography guileless
children who have access to the internet. For this
reason, the government has a legitimate right to
regulate the use of cyberspace and contain and
punish wrongdoings.
Notably, there are also those who would want,
like vandals, to wreak or cause havoc to the
computer systems and networks of indispensable
or highly useful institutions as well as to the
laptop or computer programs and memories of
innocent individuals. They accomplish this by
sending electronic viruses or virtual dynamites
that destroy those computer systems, networks,
programs, and memories. The government
certainly has the duty and the right to prevent
these tomfooleries from happening and punish
their perpetrators, hence the Cybercrime
Prevention Act. SHCaEA
But petitioners claim that the means adopted by
the cybercrime law for regulating undesirable
cyberspace activities violate certain of their
constitutional rights. The government of course
asserts that the law merely seeks to reasonably
put order into cyberspace activities, punish
wrongdoings, and prevent hurtful attacks on the
system.
Pending hearing and adjudication of the issues
presented in these cases, on February 5, 2013
58 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
the Court extended the original 120-day
temporary restraining order (TRO) that it earlier
issued on October 9, 2012, enjoining respondent
government agencies from implementing the
cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the
following provisions of the cybercrime law that
regard certain acts as crimes and impose
penalties for their commission as well as
provisions that would enable the government to
track down and penalize violators. These
provisions are:
a.Section 4 (a) (1) on Illegal Access;
b.Section 4 (a) (3) on Data Interference;
c.Section 4 (a) (6) on Cyber-squatting;
d.Section 4 (b) (3) on Identity Theft; IASCTD
e.Section 4 (c) (1) on Cybersex;
f.Section 4 (c) (2) on Child Pornography;
g.Section 4 (c) (3) on Unsolicited Commercial
Communications;
h.Section 4 (c) (4) on Libel;
i.Section 5 on Aiding or Abetting and Attempt in
the Commission of Cybercrimes;
j.Section 6 on the Penalty of One Degree Higher;
k.Section 7 on the Prosecution under both the
Revised Penal Code (RPC) and R.A. 10175;
l.Section 8 on Penalties;
m.Section 12 on Real-Time Collection of Traffic
Data;
n.Section 13 on Preservation of Computer Data;
o.Section 14 on Disclosure of Computer Data;
p.Section 15 on Search, Seizure and Examination
of Computer Data;
q.Section 17 on Destruction of Computer Data;
r.Section 19 on Restricting or Blocking Access to
Computer Data;
s.Section 20 on Obstruction of Justice;
t.Section 24 on Cybercrime Investigation and
Coordinating Center (CICC); and
u.Section 26 (a) on CICC's Powers and Functions.
Some petitioners also raise the constitutionality
of related Articles 353, 354, 361, and 362 of the
RPC on the crime of libel.
The Rulings of the Court
Section 4 (a) (1)
Section 4 (a) (1) provides: ICTcDA
Section 4.Cybercrime Offenses. The following
acts constitute the offense of cybercrime
punishable under this Act:
(a)Offenses against the confidentiality, integrity
and availability of computer data and systems:
(1)Illegal Access. The access to the whole or
any part of a computer system without right.
Petitioners contend that Section 4 (a) (1) fails to
meet the strict scrutiny standard required of laws
that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny
standard, an American constitutional construct, 1
useful in determining the constitutionality of laws
that tend to target a class of things or persons.
According to this standard, a legislative
classification that impermissibly interferes with
the exercise of fundamental right or operates to
the peculiar class disadvantage of a suspect class
is presumed unconstitutional. The burden is on
the government to prove that the classification is
necessary to achieve a compelling state interest
and that it is the least restrictive means to
protect such interest. 2 Later, the strict scrutiny
standard was used to assess the validity of laws
dealing with the regulation of speech, gender, or
race as well as other fundamental rights, as
expansion from its earlier applications to equal
protection. 3 CAIaDT
In the cases before it, the Court finds nothing in
Section 4 (a) (1) that calls for the application of
the strict scrutiny standard since no fundamental
freedom, like speech, is involved in punishing
what is essentially a condemnable act
accessing the computer system of another
without right. It is a universally condemned
conduct. 4
Petitioners of course fear that this section will
jeopardize the work of ethical hackers,
professionals who employ tools and techniques
used by criminal hackers but would neither
damage the target systems nor steal information.
Ethical hackers evaluate the target system's
security and report back to the owners the
vulnerabilities they found in it and give
instructions for how these can be remedied.
Ethical hackers are the equivalent of independent
auditors who come into an organization to verify
its bookkeeping records. 5
Besides, a client's engagement of an ethical
hacker requires an agreement between them as
to the extent of the search, the methods to be
used, and the systems to be tested. This is
referred to as the "get out of jail free card." 6
Since the ethical hacker does his job with prior
permission from the client, such permission would
insulate him from the coverage of Section 4 (a)
(1).
Section 4 (a) (3) of the Cybercrime Law
Section 4 (a) (3) provides:
Section 4.Cybercrime Offenses. The following
acts constitute the offense of cybercrime
punishable under this Act:
59 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
(a)Offenses against the confidentiality, integrity
and availability of computer data and systems:
xxx xxx xxx
(3)Data Interference. The intentional or
reckless alteration, damaging, deletion or
deterioration of computer data, electronic
document, or electronic data message, without
right, including the introduction or transmission of
viruses. DASCIc
Petitioners claim that Section 4 (a) (3) suffers
from overbreadth in that, while it seeks to
discourage data interference, it intrudes into the
area of protected speech and expression, creating
a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper
governmental purpose, constitutionally subject to
state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly,
thereby invading the area of protected freedoms.
7 But Section 4 (a) (3) does not encroach on
these freedoms at all. It simply punishes what
essentially is a form of vandalism, 8 the act of
willfully destroying without right the things that
belong to others, in this case their computer
data, electronic document, or electronic data
message. Such act has no connection to
guaranteed freedoms. There is no freedom to
destroy other people's computer systems and
private documents.
All penal laws, like the cybercrime law, have of
course an inherent chilling effect, an in terrorem
effect 9 or the fear of possible prosecution that
hangs on the heads of citizens who are minded to
step beyond the boundaries of what is proper. But
to prevent the State from legislating criminal laws
because they instill such kind of fear is to render
the state powerless in addressing and penalizing
socially harmful conduct. 10 Here, the chilling
effect that results in paralysis is an illusion since
Section 4 (a) (3) clearly describes the evil that it
seeks to punish and creates no tendency to
intimidate the free exercise of one's constitutional
rights.
Besides, the overbreadth challenge places on
petitioners the heavy burden of proving that
under no set of circumstances will Section 4 (a)
(3) be valid. 11 Petitioner has failed to discharge
this burden.
Section 4 (a) (6) of the Cybercrime Law
Section 4 (a) (6) provides: CHTcSE
Section 4.Cybercrime Offenses. The following
acts constitute the offense of cybercrime
punishable under this Act:
(a)Offenses against the confidentiality, integrity
and availability of computer data and systems:
xxx xxx xxx
(6)Cyber-squatting. The acquisition of domain
name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive
others from registering the same, if such a
domain name is:
(i)Similar, identical, or confusingly similar to an
existing trademark registered with the
appropriate government agency at the time of
the domain name registration;

(ii)Identical or in any way similar with the name of
a person other than the registrant, in case of a
personal name; and CEcaTH
(iii)Acquired without right or with intellectual
property interests in it.
Petitioners claim that Section 4 (a) (6) or cyber-
squatting violates the equal protection clause 12
in that, not being narrowly tailored, it will cause a
user using his real name to suffer the same fate
as those who use aliases or take the name of
another in satire, parody, or any other literary
device. For example, supposing there exists a
well known billionaire-philanthropist named "Julio
Gandolfo," the law would punish for cyber-
squatting both the person who registers such
name because he claims it to be his pseudo-
name and another who registers the name
because it happens to be his real name.
Petitioners claim that, considering the substantial
distinction between the two, the law should
recognize the difference.
But there is no real difference whether he uses
"Julio Gandolfo" which happens to be his real
name or use it as a pseudo-name for it is the evil
purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing
him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive
others who are not ill-motivated of the rightful
opportunity of registering the same. The
challenge to the constitutionality of Section 4 (a)
(6) on ground of denial of equal protection is
baseless.
Section 4 (b) (3) of the Cybercrime Law
Section 4 (b) (3) provides:
Section 4.Cybercrime Offenses. The following
acts constitute the offense of cybercrime
punishable under this Act:
xxx xxx xxx
b)Computer-related Offenses: CTSDAI
xxx xxx xxx
(3)Computer-related Identity Theft. The
intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of identifying
information belonging to another, whether
natural or juridical, without right: Provided: that if
no damage has yet been caused, the penalty
imposable shall be one (1) degree lower.
Petitioners claim that Section 4 (b) (3) violates
the constitutional rights to due process and to
privacy and correspondence, and transgresses
the freedom of the press.
The right to privacy, or the right to be let alone,
was institutionalized in the 1987 Constitution as a
facet of the right protected by the guarantee
against unreasonable searches and seizures. 13
But the Court acknowledged its existence as early
as 1968 in Morfe v. Mutuc, 14 it ruled that the
right to privacy exists independently of its
identification with liberty; it is in itself fully
deserving of constitutional protection.
60 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Relevant to any discussion of the right to privacy
is the concept known as the "Zones of Privacy."
The Court explained in "In the Matter of the
Petition for Issuance of Writ of Habeas Corpus of
Sabio v. Senator Gordon" 15 the relevance of
these zones to the right to privacy:
Zones of privacy are recognized and protected in
our laws. Within these zones, any form of
intrusion is impermissible unless excused by law
and in accordance with customary legal process.
The meticulous regard we accord to these zones
arises not only from our conviction that the right
to privacy is a "constitutional right" and "the right
most valued by civilized men," but also from our
adherence to the Universal Declaration of Human
Rights which mandates that, "no one shall be
subjected to arbitrary interference with his
privacy" and "everyone has the right to the
protection of the law against such interference or
attacks." AaECSH
Two constitutional guarantees create these zones
of privacy: (a) the right against unreasonable
searches 16 and seizures, which is the basis of
the right to be let alone, and (b) the right to
privacy of communication and correspondence.
17
In assessing the challenge that the State has
impermissibly intruded into these zones of
privacy, a court must determine whether a
person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has
been violated by unreasonable government
intrusion. 18
The usual identifying information regarding a
person includes his name, his citizenship, his
residence address, his contact number, his place
and date of birth, the name of his spouse if any,
his occupation, and similar data. 19 The law
punishes those who acquire or use such
identifying information without right, implicitly to
cause damage. Petitioners simply fail to show
how government effort to curb computer-related
identity theft violates the right to privacy and
correspondence as well as the right to due
process of law.
Also, the charge of invalidity of this section based
on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech.
Clearly, what this section regulates are specific
actions: the acquisition, use, misuse or deletion
of personal identifying data of another. There is
no fundamental right to acquire another's
personal data.
Further, petitioners fear that Section 4 (b) (3)
violates the freedom of the press in that
journalists would be hindered from accessing the
unrestricted user account of a person in the news
to secure information about him that could be
published. But this is not the essence of identity
theft that the law seeks to prohibit and punish.
Evidently, the theft of identity information must
be intended for an illegitimate purpose.
Moreover, acquiring and disseminating
information made public by the user himself
cannot be regarded as a form of theft.
The Court has defined intent to gain as an
internal act which can be established through the
overt acts of the offender, and it may be
presumed from the furtive taking of useful
property pertaining to another, unless special
circumstances reveal a different intent on the
part of the perpetrator. 20 As such, the press,
whether in quest of news reporting or social
investigation, has nothing to fear since a special
circumstance is present to negate intent to gain
which is required by this Section.
Section 4 (c) (1) of the Cybercrime Law
Section 4 (c) (1) provides:
Sec. 4.Cybercrime Offenses. The following acts
constitute the offense of cybercrime punishable
under this Act:
xxx xxx xxx
(c)Content-related Offenses:
(1)Cybersex. The willful engagement,
maintenance, control, or operation, directly or
indirectly, of any lascivious exhibition of sexual
organs or sexual activity, with the aid of a
computer system, for favor or consideration.
EHTISC
Petitioners claim that the above violates the
freedom of expression clause of the Constitution.
21 They express fear that private
communications of sexual character between
husband and wife or consenting adults, which are
not regarded as crimes under the penal code,
would now be regarded as crimes when done "for
favor" in cyberspace. In common usage, the term
"favor" includes "gracious kindness," "a special
privilege or right granted or conceded," or "a
token of love (as a ribbon) usually worn
conspicuously." 22 This meaning given to the
term "favor" embraces socially tolerated trysts.
The law as written would invite law enforcement
agencies into the bedrooms of married couples or
consenting individuals.
But the deliberations of the Bicameral Committee
of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the
issue. These deliberations show a lack of intent to
penalize a "private showing . . . between and
among two private persons . . . although that
may be a form of obscenity to some." 23 The
understanding of those who drew up the
cybercrime law is that the element of "engaging
in a business" is necessary to constitute the
illegal cybersex. 24 The Act actually seeks to
punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This
includes interactive prostitution and pornography,
i.e., by webcam. 25
The subject of Section 4 (c) (1) lascivious
exhibition of sexual organs or sexual activity is
not novel. Article 201 of the RPC punishes
"obscene publications and exhibitions and
indecent shows." The Anti-Trafficking in Persons
Act of 2003 penalizes those who "maintain or hire
a person to engage in prostitution or
pornography." 26 The law defines prostitution as
any act, transaction, scheme, or design involving
the use of a person by another, for sexual
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intercourse or lascivious conduct in exchange for
money, profit, or any other consideration. 27
The case of Nogales v. People 28 shows the
extent to which the State can regulate materials
that serve no other purpose than satisfy the
market for violence, lust, or pornography. 29 The
Court weighed the property rights of individuals
against the public welfare. Private property, if
containing pornographic materials, may be
forfeited and destroyed. Likewise, engaging in
sexual acts privately through Internet connection,
perceived by some as a right, has to be balanced
with the mandate of the State to eradicate white
slavery and the exploitation of women.
In any event, consenting adults are protected by
the wealth of jurisprudence delineating the
bounds of obscenity. 30 The Court will not declare
Section 4 (c) (1) unconstitutional where it stands
a construction that makes it apply only to persons
engaged in the business of maintaining,
controlling, or operating, directly or indirectly, the
lascivious exhibition of sexual organs or sexual
activity with the aid of a computer system as
Congress has intended.
Section 4 (c) (2) of the Cybercrime Law
Section 4 (c) (2) provides:
Sec. 4.Cybercrime Offenses. The following acts
constitute the offense of cybercrime punishable
under this Act: cTCaEA
xxx xxx xxx
(c)Content-related Offenses:
xxx xxx xxx
(2)Child Pornography. The unlawful or
prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a
computer system: Provided, That the penalty to
be imposed shall be (1) one degree higher than
that provided for in Republic Act No. 9775.
It seems that the above merely expands the
scope of the Anti-Child Pornography Act of 2009
31 (ACPA) to cover identical activities in
cyberspace. In theory, nothing prevents the
government from invoking the ACPA when
prosecuting persons who commit child
pornography using a computer system. Actually,
ACPA's definition of child pornography already
embraces the use of "electronic, mechanical,
digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA
provision.
Of course, the law makes the penalty higher by
one degree when the crime is committed in
cyberspace. But no one can complain since the
intensity or duration of penalty is a legislative
prerogative and there is rational basis for such
higher penalty. 32 The potential for uncontrolled
proliferation of a particular piece of child
pornography when uploaded in the cyberspace is
incalculable. AacCHD
Petitioners point out that the provision of ACPA
that makes it unlawful for any person to
"produce, direct, manufacture or create any form
of child pornography" 33 clearly relates to the
prosecution of persons who aid and abet the core
offenses that ACPA seeks to punish. 34 Petitioners
are wary that a person who merely doodles on
paper and imagines a sexual abuse of a 16-year-
old is not criminally liable for producing child
pornography but one who formulates the idea on
his laptop would be. Further, if the author
bounces off his ideas on Twitter, anyone who
replies to the tweet could be considered aiding
and abetting a cybercrime.
The question of aiding and abetting the offense
by simply commenting on it will be discussed
elsewhere below. For now the Court must hold
that the constitutionality of Section 4 (c) (2) is not
successfully challenged.
Section 4 (c) (3) of the Cybercrime Law
Section 4 (c) (3) provides:
Sec. 4.Cybercrime Offenses. The following acts
constitute the offense of cybercrime punishable
under this Act:
xxx xxx xxx
(c)Content-related Offenses:
xxx xxx xxx
(3)Unsolicited Commercial Communications.
The transmission of commercial electronic
communication with the use of computer system
which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:
(i)There is prior affirmative consent from the
recipient; or CaASIc
(ii)The primary intent of the communication is for
service and/or administrative announcements
from the sender to its existing users, subscribers
or customers; or
(iii)The following conditions are present:
(aa)The commercial electronic communication
contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial
electronic messages (opt-out) from the same
source;
(bb)The commercial electronic communication
does not purposely disguise the source of the
electronic message; and
(cc)The commercial electronic communication
does not purposely include misleading
information in any part of the message in order to
induce the recipients to read the message.
The above penalizes the transmission of
unsolicited commercial communications, also
known as "spam." The term "spam" surfaced in
early internet chat rooms and interactive fantasy
games. One who repeats the same sentence or
comment was said to be making a "spam." The
term referred to a Monty Python's Flying Circus
scene in which actors would keep saying "Spam,
Spam, Spam, and Spam" when reading options
from a menu. 35 SEACTH
The Government, represented by the Solicitor
General, points out that unsolicited commercial
communications or spams are a nuisance that
62 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
wastes the storage and network capacities of
internet service providers, reduces the efficiency
of commerce and technology, and interferes with
the owner's peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one's
privacy since the person sending out spams
enters the recipient's domain without prior
permission. The OSG contends that commercial
speech enjoys less protection in law.
But, firstly, the government presents no basis for
holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people,
before the arrival of the age of computers, have
already been receiving such unsolicited ads by
mail. These have never been outlawed as
nuisance since people might have interest in such
ads. What matters is that the recipient has the
option of not opening or reading these mail ads.
That is true with spams. Their recipients always
have the option to delete or not to read them.
cSCTEH
To prohibit the transmission of unsolicited ads
would deny a person the right to read his emails,
even unsolicited commercial ads addressed to
him. Commercial speech is a separate category of
speech which is not accorded the same level of
protection as that given to other constitutionally
guaranteed forms of expression but is
nonetheless entitled to protection. 36 The State
cannot rob him of this right without violating the
constitutionally guaranteed freedom of
expression. Unsolicited advertisements are
legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4 (c) (4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both
the penal code provisions on libel as well as
Section 4 (c) (4) of the Cybercrime Prevention Act
on cyberlibel.
The RPC provisions on libel read:
Art. 353.Definition of libel. A libel is public and
malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the
memory of one who is dead.
Art. 354.Requirement for publicity. Every
defamatory imputation is presumed to be
malicious, even if it be true, if no good intention
and justifiable motive for making it is shown,
except in the following cases:
1.A private communication made by any person
to another in the performance of any legal, moral
or social duty; and
2.A fair and true report, made in good faith,
without any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or
of any other act performed by public officers in
the exercise of their functions.
Art. 355.Libel means by writings or similar
means. A libel committed by means of writing,
printing, lithography, engraving, radio,
phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means,
shall be punished by prision correccional in its
minimum and medium periods or a fine ranging
from 200 to 6,000 pesos, or both, in addition to
the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the
other hand, merely incorporates to form part of it
the provisions of the RPC on libel. Thus Section 4
(c) (4) reads:
Sec. 4.Cybercrime Offenses. The following acts
constitute the offense of cybercrime punishable
under this Act:
xxx xxx xxx
(c)Content-related Offenses: EaDATc
xxx xxx xxx
(4)Libel. The unlawful or prohibited acts of libel
as defined in Article 355 of the Revised Penal
Code, as amended, committed through a
computer system or any other similar means
which may be devised in the future.
Petitioners lament that libel provisions of the
penal code 37 and, in effect, the libel provisions
of the cybercrime law carry with them the
requirement of "presumed malice" even when the
latest jurisprudence already replaces it with the
higher standard of "actual malice" as a basis for
conviction. 38 Petitioners argue that inferring
"presumed malice" from the accused's
defamatory statement by virtue of Article 354 of
the penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that
the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence
requiring "actual malice" could easily be
overturned as the Court has done in Fermin v.
People 39 even where the offended parties
happened to be public figures.
The elements of libel are: (a) the allegation of a
discreditable act or condition concerning another;
(b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact 41 when
the offender makes the defamatory statement
with the knowledge that it is false or with reckless
disregard of whether it was false or not. 42 The
reckless disregard standard used here requires a
high degree of awareness of probable falsity.
There must be sufficient evidence to permit the
conclusion that the accused in fact entertained
serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is
not sufficient to establish actual malice. 43
The prosecution bears the burden of proving the
presence of actual malice in instances where
such element is required to establish guilt. The
defense of absence of actual malice, even when
the statement turns out to be false, is available
where the offended party is a public official or a
public figure, as in the cases of Vasquez (a
barangay official) and Borjal (the Executive
Director, First National Conference on Land
63 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel
against private persons, the Court recognizes that
these laws imply a stricter standard of "malice" to
convict the author of a defamatory statement
where the offended party is a public figure.
Society's interest and the maintenance of good
government demand a full discussion of public
affairs. 44 CSAcTa
Parenthetically, the Court cannot accept the
proposition that its ruling in Fermin disregarded
the higher standard of actual malice or malice in
fact when it found Cristinelli Fermin guilty of
committing libel against complainants who were
public figures. Actually, the Court found the
presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that
petitioner had the motive to make defamatory
imputations against complainants. Thus,
petitioner cannot, by simply making a general
denial, convince us that there was no malice on
her part. Verily, not only was there malice in law,
the article being malicious in itself, but there was
also malice in fact, as there was motive to talk ill
against complainants during the electoral
campaign. (Emphasis ours) SIaHTD
Indeed, the Court took into account the relatively
wide leeway given to utterances against public
figures in the above case, cinema and television
personalities, when it modified the penalty of
imprisonment to just a fine of P6,000.00.
But, where the offended party is a private
individual, the prosecution need not prove the
presence of malice. The law explicitly presumes
its existence (malice in law) from the defamatory
character of the assailed statement. 45 For his
defense, the accused must show that he has a
justifiable reason for the defamatory statement
even if it was in fact true. 46
Petitioners peddle the view that both the penal
code and the Cybercrime Prevention Act violate
the country's obligations under the International
Covenant of Civil and Political Rights (ICCPR).
They point out that in Adonis v. Republic of the
Philippines, 47 the United Nations Human Rights
Committee (UNHRC) cited its General Comment
34 to the effect that penal defamation laws
should include the defense of truth.
But General Comment 34 does not say that the
truth of the defamatory statement should
constitute an all-encompassing defense. As it
happens, Article 361 recognizes truth as a
defense but under the condition that the accused
has been prompted in making the statement by
good motives and for justifiable ends. Thus:
Art. 361.Proof of the truth. In every criminal
prosecution for libel, the truth may be given in
evidence to the court and if it appears that the
matter charged as libelous is true, and, moreover,
that it was published with good motives and for
justifiable ends, the defendants shall be
acquitted.
Proof of the truth of an imputation of an act or
omission not constituting a crime shall not be
admitted, unless the imputation shall have been
made against Government employees with
respect to facts related to the discharge of their
official duties.
In such cases if the defendant proves the truth of
the imputation made by him, he shall be
acquitted.
Besides, the UNHRC did not actually enjoin the
Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle
freedom of expression. 48 Indeed, the ICCPR
states that although everyone should enjoy
freedom of expression, its exercise carries with it
special duties and responsibilities. Free speech is
not absolute. It is subject to certain restrictions,
as may be necessary and as may be provided by
law. 49
The Court agrees with the Solicitor General that
libel is not a constitutionally protected speech
and that the government has an obligation to
protect private individuals from defamation.
Indeed, cyberlibel is actually not a new crime
since Article 353, in relation to Article 355 of the
penal code, already punishes it. In effect, Section
4 (c) (4) above merely affirms that online
defamation constitutes "similar means" for
committing libel.
But the Court's acquiescence goes only insofar as
the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings
with it certain intricacies, unheard of when the
penal code provisions on libel were enacted. The
culture associated with internet media is distinct
from that of print. DaScCH
The internet is characterized as encouraging a
freewheeling, anything-goes writing style. 50 In a
sense, they are a world apart in terms of
quickness of the reader's reaction to defamatory
statements posted in cyberspace, facilitated by
one-click reply options offered by the networking
site as well as by the speed with which such
reactions are disseminated down the line to other
internet users. Whether these reactions to
defamatory statement posted on the internet
constitute aiding and abetting libel, acts that
Section 5 of the cybercrime law punishes, is
another matter that the Court will deal with next
in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5.Other Offenses. The following acts shall
also constitute an offense:
(a)Aiding or Abetting in the Commission of
Cybercrime. Any person who willfully abets or
aids in the commission of any of the offenses
enumerated in this Act shall be held liable.
(b)Attempt in the Commission of Cybercrime.
Any person who willfully attempts to commit any
of the offenses enumerated in this Act shall be
held liable.
Petitioners assail the constitutionality of Section 5
that renders criminally liable any person who
willfully abets or aids in the commission or
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attempts to commit any of the offenses
enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent
effect on protected expression.
The Solicitor General contends, however, that the
current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of
expression of "netizens," the multitude that avail
themselves of the services of the internet. He
points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and
common usage is at times sufficient to guide law
enforcement agencies in enforcing the law. 51
The legislature is not required to define every
single word contained in the laws they craft.
Aiding or abetting has of course well-defined
meaning and application in existing laws. When a
person aids or abets another in destroying a
forest, 52 smuggling merchandise into the
country, 53 or interfering in the peaceful
picketing of laborers, 54 his action is essentially
physical and so is susceptible to easy assessment
as criminal in character. These forms of aiding or
abetting lend themselves to the tests of common
sense and human experience.
But, when it comes to certain cybercrimes, the
waters are muddier and the line of sight is
somewhat blurred. The idea of "aiding or
abetting" wrongdoings online threatens the
heretofore popular and unchallenged dogmas of
cyberspace use. ScaHDT
According to the 2011 Southeast Asia Digital
Consumer Report, 33% of Filipinos have accessed
the internet within a year, translating to about 31
million users. 55 Based on a recent survey, the
Philippines ranks 6th in the top 10 most engaged
countries for social networking. 56 Social
networking sites build social relations among
people who, for example, share interests,
activities, backgrounds, or real-life connections.
57
Two of the most popular of these sites are
Facebook and Twitter. As of late 2012, 1.2 billion
people with shared interests use Facebook to get
in touch. 58 Users register at this site, create a
personal profile or an open book of who they are,
add other users as friends, and exchange
messages, including automatic notifications when
they update their profile. 59 A user can post a
statement, a photo, or a video on Facebook,
which can be made visible to anyone, depending
on the user's privacy settings. acIHDA
If the post is made available to the public,
meaning to everyone and not only to his friends,
anyone on Facebook can react to the posting,
clicking any of several buttons of preferences on
the program's screen such as "Like," "Comment,"
or "Share." "Like" signifies that the reader likes
the posting while "Comment" enables him to post
online his feelings or views about the same, such
as "This is great!" When a Facebook user "Shares"
a posting, the original "posting" will appear on his
own Facebook profile, consequently making it
visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social
networking and microblogging service that
enables its users to send and read short text-
based messages of up to 140 characters. These
are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content
which could be in the form of text, pictures,
links, short videos, or other media on the
internet. Instead of friends, a Twitter user has
"Followers," those who subscribe to this particular
user's posts, enabling them to read the same,
and "Following," those whom this particular user
is subscribed to, enabling him to read their posts.
Like Facebook, a Twitter user can make his tweets
available only to his Followers, or to the general
public. If a post is available to the public, any
Twitter user can "Retweet" a given posting.
Retweeting is just reposting or republishing
another person's tweet without the need of
copying and pasting it.
In the cyberworld, there are many actors: a) the
blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the
internet service provider like PLDT, Smart, Globe,
or Sun; d) the internet cafe that may have
provided the computer used for posting the blog;
e) the person who makes a favorable comment
on the blog; and f) the person who posts a link to
the blog site. 60 Now, suppose Maria (a blogger)
maintains a blog on WordPress.com (blog service
provider). She needs the internet to access her
blog so she subscribes to Sun Broadband
(Internet Service Provider). THEDcS
One day, Maria posts on her internet account the
statement that a certain married public official
has an illicit affair with a movie star. Linda, one of
Maria's friends who sees this post, comments
online, "Yes, this is so true! They are so immoral."
Maria's original post is then multiplied by her
friends and the latter's friends, and down the line
to friends of friends almost ad infinitum. Nena,
who is a stranger to both Maria and Linda, comes
across this blog, finds it interesting and so shares
the link to this apparently defamatory blog on her
Twitter account. Nena's "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random
person's "Retweet" of Nena's original tweet and
posts this on her Facebook account. Immediately,
Pamela's Facebook Friends start Liking and
making Comments on the assailed posting. A lot
of them even press the Share button, resulting in
the further spread of the original posting into
tens, hundreds, thousands, and greater postings.
The question is: are online postings such as
"Liking" an openly defamatory statement,
"Commenting" on it, or "Sharing" it with others,
to be regarded as "aiding or abetting?" In libel in
the physical world, if Nestor places on the office
bulletin board a small poster that says, "Armand
is a thief!," he could certainly be charged with
libel. If Roger, seeing the poster, writes on it, "I
like this!," that could not be libel since he did not
author the poster. If Arthur, passing by and
noticing the poster, writes on it, "Correct!," would
that be libel? No, for he merely expresses
agreement with the statement on the poster. He
still is not its author. Besides, it is not clear if
65 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
aiding or abetting libel in the physical world is a
crime.
But suppose Nestor posts the blog, "Armand is a
thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves
of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel?
And, in the complex world of cyberspace
expressions of thoughts, when will one be liable
for aiding or abetting cybercrimes? Where is the
venue of the crime?
Except for the original author of the assailed
statement, the rest (those who pressed Like,
Comment and Share) are essentially knee-jerk
sentiments of readers who may think little or
haphazardly of their response to the original
posting. Will they be liable for aiding or abetting?
And, considering the inherent impossibility of
joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to
be filed in court, who will make a choice as to
who should go to jail for the outbreak of the
challenged posting?
The old parameters for enforcing the traditional
form of libel would be a square peg in a round
hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into
account its unique circumstances and culture,
such law will tend to create a chilling effect on
the millions that use this new medium of
communication in violation of their
constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same
issue in Reno v. American Civil Liberties Union, 61
a case involving the constitutionality of the
Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by
means of a telecommunications device, of
"obscene or indecent" communications to any
recipient under 18 years of age; and (2) the
knowing use of an interactive computer service to
send to a specific person or persons under 18
years of age or to display in a manner available
to a person under 18 years of age
communications that, in context, depict or
describe, in terms "patently offensive" as
measured by contemporary community
standards, sexual or excretory activities or
organs.
Those who challenged the Act claim that the law
violated the First Amendment's guarantee of
freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled: SIAEHC
The vagueness of the Communications Decency
Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter
of special concern for two reasons. First, the CDA
is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S.
Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is
a criminal statute. In addition to the opprobrium
and stigma of a criminal conviction, the CDA
threatens violators with penalties including up to
two years in prison for each act of violation. The
severity of criminal sanctions may well cause
speakers to remain silent rather than
communicate even arguably unlawful words,
ideas, and images. As a practical matter, this
increased deterrent effect, coupled with the risk
of discriminatory enforcement of vague
regulations, poses greater U.S. Const. amend. I
concerns than those implicated by certain civil
regulations.
xxx xxx xxx
The Communications Decency Act of 1996 (CDA),
47 U.S.C.S. 223, presents a great threat of
censoring speech that, in fact, falls outside the
statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably
silences some speakers whose messages would
be entitled to constitutional protection. That
danger provides further reason for insisting that
the statute not be overly broad. The CDA's
burden on protected speech cannot be justified if
it could be avoided by a more carefully drafted
statute. (Emphasis ours)
Libel in the cyberspace can of course stain a
person's image with just one click of the mouse.
Scurrilous statements can spread and travel fast
across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his
relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental
purpose, which seeks to regulate the use of this
cyberspace communication technology to protect
a person's reputation and peace of mind, cannot
adopt means that will unnecessarily and broadly
sweep, invading the area of protected freedoms.
62 ICTDEa
If such means are adopted, self-inhibition borne
of fear of what sinister predicaments await
internet users will suppress otherwise robust
discussion of public issues. Democracy will be
threatened and with it, all liberties. Penal laws
should provide reasonably clear guidelines for law
enforcement officials and triers of facts to prevent
arbitrary and discriminatory enforcement. 63 The
terms "aiding or abetting" constitute broad sweep
that generates chilling effect on those who
express themselves through cyberspace posts,
comments, and other messages. 64 Hence,
Section 5 of the cybercrime law that punishes
"aiding or abetting" libel on the cyberspace is a
nullity.
When a penal statute encroaches upon the
freedom of speech, a facial challenge grounded
on the void-for-vagueness doctrine is acceptable.
The inapplicability of the doctrine must be
carefully delineated. As Justice Antonio T. Carpio
explained in his dissent in Romualdez v.
Commission on Elections, 65 "we must view these
statements of the Court on the inapplicability of
the overbreadth and vagueness doctrines to
penal statutes as appropriate only insofar as
these doctrines are used to mount 'facial'
challenges to penal statutes not involving free
speech."
In an "as applied" challenge, the petitioner who
claims a violation of his constitutional right can
raise any constitutional ground absence of due
process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one
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can challenge the constitutionality of a statute
only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality
of the statute based solely on the violation of the
rights of third persons not before the court. This
rule is also known as the prohibition against third-
party standing. 66
But this rule admits of exceptions. A petitioner
may for instance mount a "facial" challenge to
the constitutionality of a statute even if he claims
no violation of his own rights under the assailed
statute where it involves free speech on grounds
of overbreadth or vagueness of the statute. The
rationale for this exception is to counter the
"chilling effect" on protected speech that comes
from statutes violating free speech. A person who
does not know whether his speech constitutes a
crime under an overbroad or vague law may
simply restrain himself from speaking in order to
avoid being charged of a crime. The overbroad or
vague law thus chills him into silence. 67
As already stated, the cyberspace is an
incomparable, pervasive medium of
communication. It is inevitable that any
government threat of punishment regarding
certain uses of the medium creates a chilling
effect on the constitutionally-protected freedom
of expression of the great masses that use it. In
this case, the particularly complex web of
interaction on social media websites would give
law enforcers such latitude that they could
arbitrarily or selectively enforce the law. HCTDIS
Who is to decide when to prosecute persons who
boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what
is lawful conduct. When a case is filed, how will
the court ascertain whether or not one netizen's
comment aided and abetted a cybercrime while
another comment did not?
Of course, if the "Comment" does not merely
react to the original posting but creates an
altogether new defamatory story against Armand
like "He beats his wife and children," then that
should be considered an original posting
published on the internet. Both the penal code
and the cybercrime law clearly punish authors of
defamatory publications. Make no mistake, libel
destroys reputations that society values. Allowed
to cascade in the internet, it will destroy
relationships and, under certain circumstances,
will generate enmity and tension between social
or economic groups, races, or religions,
exacerbating existing tension in their
relationships.
In regard to the crime that targets child
pornography, when "Google procures, stores, and
indexes child pornography and facilitates the
completion of transactions involving the
dissemination of child pornography," does this
make Google and its users ciders and abettors in
the commission of child pornography crimes? 68
Byars highlights a feature in the American law on
child pornography that the Cybercrimes law lacks
the exemption of a provider or notably a plain
user of interactive computer service from civil
liability for child pornography as follows:
No provider or user of an interactive computer
service shall be treated as the publisher or
speaker of any information provided by another
information content provider and cannot be held
civilly liable for any action voluntarily taken in
good faith to restrict access to or availability of
material that the provider or user considers to be
obscene . . . whether or not such material is
constitutionally protected. 69
When a person replies to a Tweet containing child
pornography, he effectively republishes it
whether wittingly or unwittingly. Does this make
him a willing accomplice to the distribution of
child pornography? When a user downloads the
Facebook mobile application, the user may give
consent to Facebook to access his contact details.
In this way, certain information is forwarded to
third parties and unsolicited commercial
communication could be disseminated on the
basis of this information. 70 As the source of this
information, is the user aiding the distribution of
this communication? The legislature needs to
address this clearly to relieve users of annoying
fear of possible criminal prosecution.
Section 5 with respect to Section 4 (c) (4) is
unconstitutional. Its vagueness raises
apprehension on the part of internet users
because of its obvious chilling effect on the
freedom of expression, especially since the crime
of aiding or abetting ensnares all the actors in the
cyberspace front in a fuzzy way. What is more, as
the petitioners point out, formal crimes such as
libel are not punishable unless consummated. 71
In the absence of legislation tracing the
interaction of netizens and their level of
responsibility such as in other countries, Section
5, in relation to Section 4 (c) (4) on Libel, Section
4 (c) (3) on Unsolicited Commercial
Communications, and Section 4 (c) (2) on Child
Pornography, cannot stand scrutiny. EDISTc
But the crime of aiding or abetting the
commission of cybercrimes under Section 5
should be permitted to apply to Section 4 (a) (1)
on Illegal Access, Section 4 (a) (2) on Illegal
Interception, Section 4 (a) (3) on Data
Interference, Section 4 (a) (4) on System
Interference, Section 4 (a) (5) on Misuse of
Devices, Section 4 (a) (6) on Cyber-squatting,
Section 4 (b) (1) on Computer-related Forgery,
Section 4 (b) (2) on Computer-related Fraud,
Section 4 (b) (3) on Computer-related Identity
Theft, and Section 4 (c) (1) on Cybersex. None of
these offenses borders on the exercise of the
freedom of expression.
The crime of willfully attempting to commit any of
these offenses is for the same reason not
objectionable. A hacker may for instance have
done all that is necessary to illegally access
another party's computer system but the security
employed by the system's lawful owner could
frustrate his effort. Another hacker may have
gained access to usernames and passwords of
others but fail to use these because the system
supervisor is alerted. 72 If Section 5 that
punishes any person who willfully attempts to
commit this specific offense is not upheld, the
owner of the username and password could not
file a complaint against him for attempted
hacking. But this is not right. The hacker should
67 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks
positive limits and could cover the innocent. 73
While this may be true with respect to
cybercrimes that tend to sneak past the area of
free expression, any attempt to commit the other
acts specified in Section 4 (a) (1), Section 4 (a)
(2), Section 4 (a) (3), Section 4 (a) (4), Section 4
(a) (5), Section 4 (a) (6), Section 4 (b) (1), Section
4 (b) (2), Section 4 (b) (3), and Section 4 (c) (1)
as well as the actors aiding and abetting the
commission of such acts can be identified with
some reasonable certainty through adroit
tracking of their works. Absent concrete proof of
the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6.All crimes defined and penalized by the
Revised Penal Code, as amended, and special
laws, if committed by, through and with the use
of information and communications technologies
shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided
for by the Revised Penal Code, as amended, and
special laws, as the case may be. TcSAaH
Section 6 merely makes commission of existing
crimes through the Internet a qualifying
circumstance. As the Solicitor General points out,
there exists a substantial distinction between
crimes committed through the use of information
and communications technology and similar
crimes committed using other means. In using
the technology in question, the offender often
evades identification and is able to reach far
more victims or cause greater harm. The
distinction, therefore, creates a basis for higher
penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7.Liability under Other Laws. A
prosecution under this Act shall be without
prejudice to any liability for violation of any
provision of the Revised Penal Code, as amended,
or special laws.
The Solicitor General points out that Section 7
merely expresses the settled doctrine that a
single set of acts may be prosecuted and
penalized simultaneously under two laws, a
special law and the Revised Penal Code. When
two different laws define two crimes, prior
jeopardy as to one does not bar prosecution of
the other although both offenses arise from the
same fact, if each crime involves some important
act which is not an essential element of the other.
74 With the exception of the crimes of online libel
and online child pornography, the Court would
rather leave the determination of the correct
application of Section 7 to actual cases. SCIAaT
Online libel is different. There should be no
question that if the published material on print,
said to be libelous, is again posted online or vice
versa, that identical material cannot be the
subject of two separate libels. The two offenses,
one a violation of Article 353 of the Revised Penal
Code and the other a violation of Section 4 (c) (4)
of R.A. 10175 involve essentially the same
elements and are in fact one and the same
offense. Indeed, the OSG itself claims that online
libel under Section 4 (c) (4) is not a new crime
but is one already punished under Article 353.
Section 4 (c) (4) merely establishes the computer
system as another means of publication. 75
Charging the offender under both laws would be a
blatant violation of the proscription against
double jeopardy. 76
The same is true with child pornography
committed online. Section 4 (c) (2) merely
expands the ACPA's scope so as to include
identical activities in cyberspace. As previously
discussed, ACPA's definition of child pornography
in fact already covers the use of "electronic,
mechanical, digital, optical, magnetic or any
other means." Thus, charging the offender under
both Section 4 (c) (2) and ACPA would likewise be
tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8.Penalties. Any person found guilty of
any of the punishable acts enumerated in
Sections 4(a) and 4(b) of this Act shall be
punished with imprisonment of prision mayor or a
fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount
commensurate to the damage incurred or both.
Any person found guilty of the punishable act
under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not
more than Five hundred thousand pesos
(PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed
against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five
hundred thousand pesos (PhP500,000.00) up to
maximum amount commensurate to the damage
incurred or both, shall be imposed. aESIDH
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(1) of this Act
shall be punished with imprisonment of prision
mayor or a fine of at least Two hundred thousand
pesos (PhP200,000.00) but not exceeding One
million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(2) of this Act
shall be punished with the penalties as
enumerated in Republic Act No. 9775 or the "Anti-
Child Pornography Act of 2009:" Provided, That
the penalty to be imposed shall be one (1) degree
higher than that provided for in Republic Act No.
9775, if committed through a computer system.
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or
a fine of at least Fifty thousand pesos
(PhP50,000.00) but not exceeding Two hundred
fifty thousand pesos (PhP250,000.00) or both.
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Any person found guilty of any of the punishable
acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that
of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos
(PhP100,000.00) but not exceeding Five hundred
thousand pesos (PhP500,000.00) or both.
Section 8 provides for the penalties for the
following crimes: Sections 4 (a) on Offenses
Against the Confidentiality, Integrity and
Availability of Computer Data and Systems; 4 (b)
on Computer-related Offenses; 4 (a) (5) on Misuse
of Devices; when the crime punishable under 4
(a) is committed against critical infrastructure; 4
(c) (1) on Cybersex; 4 (c) (2) on Child
Pornography; 4 (c) (3) on Unsolicited Commercial
Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of
Cybercrime.
The matter of fixing penalties for the commission
of crimes is as a rule a legislative prerogative.
Here the legislature prescribed a measure of
severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the
evil sought to be punished. The power to
determine penalties for offenses is not diluted or
improperly wielded simply because at some prior
time the act or omission was but an element of
another offense or might just have been
connected with another crime. 77 Judges and
magistrates can only interpret and apply them
and have no authority to modify or revise their
range as determined by the legislative
department. The courts should not encroach on
this prerogative of the lawmaking body. 78
Section 12 of the Cybercrime Law
Section 12 provides: cACDaH
Sec. 12.Real-Time Collection of Traffic Data.
Law enforcement authorities, with due cause,
shall be authorized to collect or record by
technical or electronic means traffic data in real-
time associated with specified communications
transmitted by means of a computer system.
Traffic data refer only to the communication's
origin, destination, route, time, date, size,
duration, or type of underlying service, but not
content, nor identities.
All other data to be collected or seized or
disclosed will require a court warrant.
Service providers are required to cooperate and
assist law enforcement authorities in the
collection or recording of the above-stated
information.
The court warrant required under this section
shall only be issued or granted upon written
application and the examination under oath or
affirmation of the applicant and the witnesses he
may produce and the showing: (1) that there are
reasonable grounds to believe that any of the
crimes enumerated hereinabove has been
committed, or is being committed, or is about to
be committed; (2) that there are reasonable
grounds to believe that evidence that will be
obtained is essential to the conviction of any
person for, or to the solution of, or to the
prevention of, any such crimes; and (3) that there
are no other means readily available for obtaining
such evidence.
Petitioners assail the grant to law enforcement
agencies of the power to collect or record traffic
data in real time as tending to curtail civil
liberties or provide opportunities for official
abuse. They claim that data showing where
digital messages come from, what kind they are,
and where they are destined need not be
incriminating to their senders or recipients before
they are to be protected. Petitioners invoke the
right of every individual to privacy and to be
protected from government snooping into the
messages or information that they send to one
another.
The first question is whether or not Section 12
has a proper governmental purpose since a law
may require the disclosure of matters normally
considered private but then only upon showing
that such requirement has a rational relation to
the purpose of the law, 79 that there is a
compelling State interest behind the law, and
that the provision itself is narrowly drawn. 80 In
assessing regulations affecting privacy rights,
courts should balance the legitimate concerns of
the State against constitutional guarantees. 81
DEICHc
Undoubtedly, the State has a compelling interest
in enacting the cybercrime law for there is a need
to put order to the tremendous activities in
cyberspace for public good. 82 To do this, it is
within the realm of reason that the government
should be able to monitor traffic data to enhance
its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the
collection or recording of traffic data is a part,
aims to provide law enforcement authorities with
the power they need for spotting, preventing, and
investigating crimes committed in cyberspace.
Crime-fighting is a state business. Indeed, as
Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory
countries to adopt legislative measures to
empower state authorities to collect or record
"traffic data, in real time, associated with
specified communications." 83 And this is
precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or
record such data.
But is not evidence of yesterday's traffic data, like
the scene of the crime after it has been
committed, adequate for fighting cybercrimes
and, therefore, real-time data is superfluous for
that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer
system without right, 84 transmitting viruses, 85
lasciviously exhibiting sexual organs or sexual
activity for favor or consideration; 86 and
producing child pornography 87 could easily
evade detection and prosecution by simply
moving the physical location of their computers
or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually
anywhere: from internet cafs, from kindred
places that provide free internet services, and
from unregistered mobile internet connectors.
Criminals using cellphones under pre-paid
69 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
arrangements and with unregistered SIM cards do
not have listed addresses and can neither be
located nor identified. There are many ways the
cyber criminals can quickly erase their tracks.
Those who peddle child pornography could use
relays of computers to mislead law enforcement
authorities regarding their places of operations.
Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse
to court-issued search and seizure warrant that
can succeed in ferreting them out.
Petitioners of course point out that the provisions
of Section 12 are too broad and do not provide
ample safeguards against crossing legal
boundaries and invading the people's right to
privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc 88 that
certain constitutional guarantees work together
to create zones of privacy wherein governmental
powers may not intrude, and that there exists an
independent constitutional right of privacy. Such
right to be left alone has been regarded as the
beginning of all freedoms. 89
But that right is not unqualified. In Whalen v. Roe,
90 the United States Supreme Court classified
privacy into two categories: decisional privacy
and informational privacy. Decisional privacy
involves the right to independence in making
certain important decisions, while informational
privacy refers to the interest in avoiding
disclosure of personal matters. It is the latter
right the right to informational privacy that
those who oppose government collection or
recording of traffic data in real-time seek to
protect. DECcAS
Informational privacy has two aspects: the right
not to have private information disclosed, and the
right to live freely without surveillance and
intrusion. 91 In determining whether or not a
matter is entitled to the right to privacy, this
Court has laid down a two-fold test. The first is a
subjective test, where one claiming the right
must have an actual or legitimate expectation of
privacy over a certain matter. The second is an
objective test, where his or her expectation of
privacy must be one society is prepared to accept
as objectively reasonable. 92
Since the validity of the cybercrime law is being
challenged, not in relation to its application to a
particular person or group, petitioners' challenge
to Section 12 applies to all information and
communications technology (ICT) users, meaning
the large segment of the population who use all
sorts of electronic devices to communicate with
one another. Consequently, the expectation of
privacy is to be measured from the general
public's point of view. Without reasonable
expectation of privacy, the right to it would have
no basis in fact.
As the Solicitor General points out, an ordinary
ICT user who courses his communication through
a service provider, must of necessity disclose to
the latter, a third person, the traffic data needed
for connecting him to the recipient ICT user. For
example, an ICT user who writes a text message
intended for another ICT user must furnish his
service provider with his cellphone number and
the cellphone number of his recipient,
accompanying the message sent. It is this
information that creates the traffic data.
Transmitting communications is akin to putting a
letter in an envelope properly addressed, sealing
it closed, and sending it through the postal
service. Those who post letters have no
expectations that no one will read the information
appearing outside the envelope.
Computer data messages of all kinds travel
across the internet in packets and in a way that
may be likened to parcels of letters or things that
are sent through the posts. When data is sent
from any one source, the content is broken up
into packets and around each of these packets is
a wrapper or header. This header contains the
traffic data: information that tells computers
where the packet originated, what kind of data is
in the packet (SMS, voice call, video, internet chat
messages, email, online browsing data, etc.),
where the packet is going, and how the packet
fits together with other packets. 93 The difference
is that traffic data sent through the internet at
times across the ocean do not disclose the actual
names and addresses (residential or office) of the
sender and the recipient, only their coded
internet protocol (IP) addresses. The packets
travel from one computer system to another
where their contents are pieced back together.
Section 12 does not permit law enforcement
authorities to look into the contents of the
messages and uncover the identities of the
sender and the recipient. ACSaHc
For example, when one calls to speak to another
through his cellphone, the service provider's
communication's system will put his voice
message into packets and send them to the other
person's cellphone where they are refitted
together and heard. The latter's spoken reply is
sent to the caller in the same way. To be
connected by the service provider, the sender
reveals his cellphone number to the service
provider when he puts his call through. He also
reveals the cellphone number to the person he
calls. The other ways of communicating
electronically follow the same basic pattern.
In Smith v. Maryland, 94 cited by the Solicitor
General, the United States Supreme Court
reasoned that telephone users in the '70s must
realize that they necessarily convey phone
numbers to the telephone company in order to
complete a call. That Court ruled that even if
there is an expectation that phone numbers one
dials should remain private, such expectation is
not one that society is prepared to recognize as
reasonable.
In much the same way, ICT users must know that
they cannot communicate or exchange data with
one another over cyberspace except through
some service providers to whom they must
submit certain traffic data that are needed for a
successful cyberspace communication. The
conveyance of this data takes them out of the
private sphere, making the expectation to privacy
in regard to them an expectation that society is
not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio
and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together,
70 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
and analyzed, they reveal patterns of activities
which can then be used to create profiles of the
persons under surveillance. With enough traffic
data, analysts may be able to determine a
person's close associations, religious views,
political affiliations, even sexual preferences.
Such information is likely beyond what the public
may expect to be disclosed, and clearly falls
within matters protected by the right to privacy.
But has the procedure that Section 12 of the law
provides been drawn narrowly enough to protect
individual rights?
Section 12 empowers law enforcement
authorities, "with due cause," to collect or record
by technical or electronic means traffic data in
real-time. Petitioners point out that the phrase
"due cause" has no precedent in law or
jurisprudence and that whether there is due
cause or not is left to the discretion of the police.
Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of
every word it uses in drafting the law. ATcaEH
Indeed, courts are able to save vague provisions
of law through statutory construction. But the
cybercrime law, dealing with a novel situation,
fails to hint at the meaning it intends for the
phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just
reason or motive" and "adherence to a lawful
procedure." But the Court cannot draw this
meaning since Section 12 does not even bother
to relate the collection of data to the probable
commission of a particular crime. It just says,
"with due cause," thus justifying a general
gathering of data. It is akin to the use of a
general search warrant that the Constitution
prohibits.
Due cause is also not descriptive of the purpose
for which data collection will be used. Will the law
enforcement agencies use the traffic data to
identify the perpetrator of a cyber attack? Or will
it be used to build up a case against an identified
suspect? Can the data be used to prevent
cybercrimes from happening?
The authority that Section 12 gives law
enforcement agencies is too sweeping and lacks
restraint. While it says that traffic data collection
should not disclose identities or content data,
such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies
holding these data in their hands from looking
into the identity of their sender or receiver and
what the data contains. This will unnecessarily
expose the citizenry to leaked information or,
worse, to extortion from certain bad elements in
these agencies.
Section 12, of course, limits the collection of
traffic data to those "associated with specified
communications." But this supposed limitation is
no limitation at all since, evidently, it is the law
enforcement agencies that would specify the
target communications. The power is virtually
limitless, enabling law enforcement authorities to
engage in "fishing expedition," choosing
whatever specified communication they want.
This evidently threatens the right of individuals to
privacy.
The Solicitor General points out that Section 12
needs to authorize collection of traffic data "in
real time" because it is not possible to get a court
warrant that would authorize the search of what
is akin to a "moving vehicle." But warrantless
search is associated with a police officer's
determination of probable cause that a crime has
been committed, that there is no opportunity for
getting a warrant, and that unless the search is
immediately carried out, the thing to be searched
stands to be removed. These preconditions are
not provided in Section 12. cDTIAC
The Solicitor General is honest enough to admit
that Section 12 provides minimal protection to
internet users and that the procedure envisioned
by the law could be better served by providing for
more robust safeguards. His bare assurance that
law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough.
The grant of the power to track cyberspace
communications in real time and determine their
sources and destinations must be narrowly drawn
to preclude abuses. 95
Petitioners also ask that the Court strike down
Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth
doctrine. These doctrines however, have been
consistently held by this Court to apply only to
free speech cases. But Section 12 on its own
neither regulates nor punishes any type of
speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology
allow the government and kindred institutions to
monitor individuals and place them under
surveillance in ways that have previously been
impractical or even impossible. "All the forces of
a technological age . . . operate to narrow the
area of privacy and facilitate intrusions into it. In
modern terms, the capacity to maintain and
support this enclave of private life marks the
difference between a democratic and a
totalitarian society." 96 The Court must ensure
that laws seeking to take advantage of these
technologies be written with specificity and
definiteness as to ensure respect for the rights
that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13.Preservation of Computer Data. The
integrity of traffic data and subscriber information
relating to communication services provided by a
service provider shall be preserved for a
minimum period of six (6) months from the date
of the transaction. Content data shall be similarly
preserved for six (6) months from the date of
receipt of the order from law enforcement
authorities requiring its preservation.
Law enforcement authorities may order a one-
time extension for another six (6) months:
Provided, That once computer data preserved,
transmitted or stored by a service provider is
used as evidence in a case, the mere furnishing
to such service provider of the transmittal
document to the Office of the Prosecutor shall be
deemed a notification to preserve the computer
data until the termination of the case.
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The service provider ordered to preserve
computer data shall keep confidential the order
and its compliance. DcCEHI
Petitioners in G.R. 203391 97 claim that Section
13 constitutes an undue deprivation of the right
to property. They liken the data preservation
order that law enforcement authorities are to
issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such
order prevents Internet users from accessing and
disposing of traffic data that essentially belong to
them.
No doubt, the contents of materials sent or
received through the internet belong to their
authors or recipients and are to be considered
private communications. But it is not clear that a
service provider has an obligation to indefinitely
keep a copy of the same as they pass its system
for the benefit of users. By virtue of Section 13,
however, the law now requires service providers
to keep traffic data and subscriber information
relating to communication services for at least six
months from the date of the transaction and
those relating to content data for at least six
months from receipt of the order for their
preservation.
Actually, the user ought to have kept a copy of
that data when it crossed his computer if he was
so minded. The service provider has never
assumed responsibility for their loss or deletion
while in its keep.
At any rate, as the Solicitor General correctly
points out, the data that service providers
preserve on orders of law enforcement authorities
are not made inaccessible to users by reason of
the issuance of such orders. The process of
preserving data will not unduly hamper the
normal transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14.Disclosure of Computer Data. Law
enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person
or service provider to disclose or submit
subscriber's information, traffic data or relevant
data in his/its possession or control within
seventy-two (72) hours from receipt of the order
in relation to a valid complaint officially docketed
and assigned for investigation and the disclosure
is necessary and relevant for the purpose of
investigation. ISaCTE
The process envisioned in Section 14 is being
likened to the issuance of a subpoena.
Petitioners' objection is that the issuance of
subpoenas is a judicial function. But it is well-
settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies
have the power to issue subpoena as an adjunct
of their investigatory powers. 98
Besides, what Section 14 envisions is merely the
enforcement of a duly issued court warrant, a
function usually lodged in the hands of law
enforcers to enable them to carry out their
executive functions. The prescribed procedure for
disclosure would not constitute an unlawful
search or seizure nor would it violate the privacy
of communications and correspondence.
Disclosure can be made only after judicial
intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15.Search, Seizure and Examination of
Computer Data. Where a search and seizure
warrant is properly issued, the law enforcement
authorities shall likewise have the following
powers and duties.
Within the time period specified in the warrant, to
conduct interception, as defined in this Act, and:
CHcESa
(a)To secure a computer system or a computer
data storage medium;
(b)To make and retain a copy of those computer
data secured;
(c)To maintain the integrity of the relevant stored
computer data;
(d)To conduct forensic analysis or examination of
the computer data storage medium; and
(e)To render inaccessible or remove those
computer data in the accessed computer or
computer and communications network.
Pursuant thereof, the law enforcement authorities
may order any person who has knowledge about
the functioning of the computer system and the
measures to protect and preserve the computer
data therein to provide, as is reasonable, the
necessary information, to enable the undertaking
of the search, seizure and examination.
Law enforcement authorities may request for an
extension of time to complete the examination of
the computer data storage medium and to make
a return thereon but in no case for a period
longer than thirty (30) days from date of approval
by the court.
Petitioners challenge Section 15 on the
assumption that it will supplant established
search and seizure procedures. On its face,
however, Section 15 merely enumerates the
duties of law enforcement authorities that would
ensure the proper collection, preservation, and
use of computer system or data that have been
seized by virtue of a court warrant. The exercise
of these duties do not pose any threat on the
rights of the person from whom they were taken.
Section 15 does not appear to supersede existing
search and seizure rules but merely supplements
them. IcHTAa
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17.Destruction of Computer Data. Upon
expiration of the periods as provided in Sections
13 and 15, service providers and law
enforcement authorities, as the case may be,
shall immediately and completely destroy the
computer data subject of a preservation and
examination.
Section 17 would have the computer data,
previous subject of preservation or examination,
destroyed or deleted upon the lapse of the
prescribed period. The Solicitor General justifies
72 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
this as necessary to clear up the service
provider's storage systems and prevent overload.
It would also ensure that investigations are
quickly concluded.
Petitioners claim that such destruction of
computer data subject of previous preservation or
examination violates the user's right against
deprivation of property without due process of
law. But, as already stated, it is unclear that the
user has a demandable right to require the
service provider to have that copy of the data
saved indefinitely for him in its storage system. If
he wanted them preserved, he should have saved
them in his computer when he generated the
data or received it. He could also request the
service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice
to restrict or block access to computer data:
aITECA
Sec. 19.Restricting or Blocking Access to
Computer Data. When a computer data is
prima facie found to be in violation of the
provisions of this Act, the DOJ shall issue an order
to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles
freedom of expression and violates the right
against unreasonable searches and seizures. The
Solicitor General concedes that this provision
may be unconstitutional. But since laws enjoy a
presumption of constitutionality, the Court must
satisfy itself that Section 19 indeed violates the
freedom and right mentioned.
Computer data 99 may refer to entire programs
or lines of code, including malware, as well as
files that contain texts, images, audio, or video
recordings. Without having to go into a lengthy
discussion of property rights in the digital space,
it is indisputable that computer data, produced or
created by their writers or authors may constitute
personal property. Consequently, they are
protected from unreasonable searches and
seizures, whether while stored in their personal
computers or in the service provider's systems.
aEcADH
Section 2, Article III of the 1987 Constitution
provides that the right to be secure in one's
papers and effects against unreasonable
searches and seizures of whatever nature and for
any purpose shall be inviolable. Further, it states
that no search warrant shall issue except upon
probable cause to be determined personally by
the judge. Here, the Government, in effect, seizes
and places the computer data under its control
and disposition without a warrant. The
Department of Justice order cannot substitute for
judicial search warrant.
The content of the computer data can also
constitute speech. In such a case, Section 19
operates as a restriction on the freedom of
expression over cyberspace. Certainly not all
forms of speech are protected. Legislature may,
within constitutional bounds, declare certain
kinds of expression as illegal. But for an executive
officer to seize content alleged to be unprotected
without any judicial warrant, it is not enough for
him to be of the opinion that such content
violates some law, for to do so would make him
judge, jury, and executioner all rolled into one.
100
Not only does Section 19 preclude any judicial
intervention, but it also disregards jurisprudential
guidelines established to determine the validity of
restrictions on speech. Restraints on free speech
are generally evaluated on one of or a
combination of three tests: the dangerous
tendency doctrine, the balancing of interest test,
and the clear and present danger rule. 101
Section 19, however, merely requires that the
data to be blocked be found prima facie in
violation of any provision of the cybercrime law.
Taking Section 6 into consideration, this can
actually be made to apply in relation to any penal
provision. It does not take into consideration any
of the three tests mentioned above. EHSIcT
The Court is therefore compelled to strike down
Section 19 for being violative of the constitutional
guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20.Noncompliance. Failure to comply with
the provisions of Chapter IV hereof specifically
the orders from law enforcement authorities shall
be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision
correccional in its maximum period or a fine of
One hundred thousand pesos (Php100,000.00) or
both, for each and every noncompliance with an
order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is
a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding
of guilt, without regard to situations where non-
compliance would be reasonable or valid.
But since the non-compliance would be punished
as a violation of Presidential Decree (P.D.) 1829,
102 Section 20 necessarily incorporates elements
of the offense which are defined therein. If
Congress had intended for Section 20 to
constitute an offense in and of itself, it would not
have had to make reference to any other statue
or provision.
P.D. 1829 states:
Section 1.The penalty of prision correccional in its
maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any
person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of
criminal cases by committing any of the following
acts:
xxx xxx xxx
Thus, the act of non-compliance, for it to be
punishable, must still be done "knowingly or
willfully." There must still be a judicial
determination of guilt, during which, as the
Solicitor General assumes, defense and
justifications for non-compliance may be raised.
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Thus, Section 20 is valid insofar as it applies to
the provisions of Chapter IV which are not struck
down by the Court.
Sections 24 and 26 (a) of the Cybercrime Law
Sections 24 and 26 (a) provide:
Sec. 24.Cybercrime Investigation and
Coordinating Center. There is hereby created,
within thirty (30) days from the effectivity of this
Act, an inter-agency body to be known as the
Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of
the Office of the President, for policy coordination
among concerned agencies and for the
formulation and enforcement of the national
cybersecurity plan. cEHSTC
Sec. 26.Powers and Functions. The CICC shall
have the following powers and functions:
(a)To formulate a national cybersecurity plan and
extend immediate assistance of real time
commission of cybercrime offenses through a
computer emergency response team (CERT); . . . .
Petitioners mainly contend that Congress invalidly
delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan
without any sufficient standards or parameters
for it to follow.
In order to determine whether there is undue
delegation of legislative power, the Court has
adopted two tests: the completeness test and the
sufficient standard test. Under the first test, the
law must be complete in all its terms and
conditions when it leaves the legislature such
that when it reaches the delegate, the only thing
he will have to do is to enforce it. The second test
mandates adequate guidelines or limitations in
the law to determine the boundaries of the
delegate's authority and prevent the delegation
from running riot. 103
Here, the cybercrime law is complete in itself
when it directed the CICC to formulate and
implement a national cybersecurity plan. Also,
contrary to the position of the petitioners, the law
gave sufficient standards for the CICC to follow
when it provided a definition of cybersecurity.
CEaDAc
Cybersecurity refers to the collection of tools,
policies, risk management approaches, actions,
training, best practices, assurance and
technologies that can be used to protect cyber
environment and organization and user's assets.
104 This definition serves as the parameters
within which CICC should work in formulating the
cybersecurity plan.
Further, the formulation of the cybersecurity plan
is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating
their detection, investigation, and prosecution at
both the domestic and international levels, and
by providing arrangements for fast and reliable
international cooperation." 105 This policy is
clearly adopted in the interest of law and order,
which has been considered as sufficient standard.
106 Hence, Sections 24 and 26 (a) are likewise
valid.

WHEREFORE, the Court DECLARES:
1.VOID for being UNCONSTITUTIONAL:
a.Section 4 (c) (3) of REPUBLIC ACT 10175 that
penalizes posting of unsolicited commercial
communications;
b.Section 12 that authorizes the collection or
recording of traffic data in real-time; and
c.Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access
to suspected Computer Data.
2.VALID and CONSTITUTIONAL:
a.Section 4 (a) (1) that penalizes accessing a
computer system without right;
b.Section 4 (a) (3) that penalizes data
interference, including transmission of viruses;
c.Section 4 (a) (6) that penalizes cyber-squatting
or acquiring domain name over the internet in
bad faith to the prejudice of others;
d.Section 4 (b) (3) that penalizes identity theft or
the use or misuse of identifying information
belonging to another;
e.Section 4 (c) (1) that penalizes cybersex or the
lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
f.Section 4 (c) (2) that penalizes the production of
child pornography;
g.Section 6 that imposes penalties one degree
higher when crimes defined under the Revised
Penal Code are committed with the use of
information and communications technologies;
h.Section 8 that prescribes the penalties for
cybercrimes;
i.Section 13 that permits law enforcement
authorities to require service providers to
preserve traffic data and subscriber information
as well as specified content data for six months;
j.Section 14 that authorizes the disclosure of
computer data under a court-issued warrant;
k.Section 15 that authorizes the search, seizure,
and examination of computer data under a court-
issued warrant;
l.Section 17 that authorizes the destruction of
previously preserved computer data after the
expiration of the prescribed holding periods;
aATCDI
m.Section 20 that penalizes obstruction of justice
in relation to cybercrime investigations;
n.Section 24 that establishes a Cybercrime
Investigation and Coordinating Center (CICC);
o.Section 26 (a) that defines the CICC's Powers
and Functions; and
74 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
p.Articles 353, 354, 361, and 362 of the Revised
Penal Code that penalizes libel.
Further, the Court DECLARES: aDHCEA
1.Section 4 (c) (4) that penalizes online libel as
VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and
UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and
2.Section 5 that penalizes aiding or abetting and
attempt in the commission of cybercrimes as
VALID and CONSTITUTIONAL only in relation to
Section 4 (a) (1) on Illegal Access, Section 4 (a)
(2) on Illegal Interception, Section 4 (a) (3) on
Data Interference, Section 4 (a) (4) on System
Interference, Section 4 (a) (5) on Misuse of
Devices, Section 4 (a) (6) on Cyber-squatting,
Section 4 (b) (1) on Computer-related Forgery,
Section 4 (b) (2) on Computer-related Fraud,
Section 4 (b) (3) on Computer-related Identity
Theft, and Section 4 (c) (1) on Cybersex; but VOID
and UNCONSTITUTIONAL with respect to Sections
4 (c) (2) on Child Pornography, 4 (c) (3) on
Unsolicited Commercial Communications, and 4
(c) (4) on online Libel.
Lastly, the Court RESOLVES to LEAVE THE
DETERMINATION of the correct application of
Section 7 that authorizes prosecution of the
offender under both the Revised Penal Code and
REPUBLIC ACT 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
1.Online libel as to which, charging the offender
under both Section 4 (c) (4) of REPUBLIC ACT
10175 and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against
double jeopardy; as well as
2.Child pornography committed online as to
which, charging the offender under both Section
4 (c) (2) of REPUBLIC ACT 10175 and Republic Act
9775 or the Anti-Child Pornography Act of 2009
also constitutes a violation of the same
proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED. SAcCIH
Leonardo-de Castro, Peralta, Bersamin, Del
Castillo, Villarama, Jr., Perez and Reyes, JJ.,
concur.
Sereno, C.J. and Carpio, J., see concurring &
dissenting opinion.
Velasco, Jr., J., took no part due to prior case.
Brion, J., see separate concurring opinion.
Mendoza, J., I join Justice Brion in all his positions.
Perlas-Bernabe, J., took no part.
Leonen, J., see separate dissenting and
concurring opinion.
(GMA Network, Inc. v. COMELEC, G.R. No.
205357, 205374, 205592, 205852 & 206360,
September 02, 2014)
EN BANC
[G.R. No. 205357. September 2, 2014.]
GMA NETWORK, INC., petitioner, vs.
COMMISSION ON ELECTIONS, respondent.
SENATOR ALAN PETER "COMPAERO" S.
CAYETANO, petitioner-intervenor.
 [G.R. No. 205374. September 2, 2014.]
ABC DEVELOPMENT CORPORATION, petitioner, vs.
COMMISSION ON ELECTIONS, respondent.
[G.R. No. 205592. September 2, 2014.]
MANILA BROADCASTING COMPANY, INC. and
NEWSOUNDS BROADCASTING NETWORK, INC.,
petitioner, vs. COMMISSION ON ELECTIONS,
respondent.
[G.R. No. 205852. September 2, 2014.]
KAPISANAN NG MGA BRODKASTER NG PILIPINAS
(KBP) and ABS-CBN CORPORATION, petitioners,
vs. COMMISSION ON ELECTIONS, respondent.
[G.R. No. 206360. September 2, 2014.]
RADIO MINDANAO NETWORK, INC., petitioner, vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
PERALTA, J p:
"The clash of rights demands a delicate balancing
of interests approach which is a 'fundamental
postulate of constitutional law.'" 1
Once again the Court is asked to draw a carefully
drawn balance in the incessant conflicts between
rights and regulations, liberties and limitations,
and competing demands of the different
segments of society. Here, we are confronted with
the need to strike a workable and viable
equilibrium between a constitutional mandate to
maintain free, orderly, honest, peaceful and
credible elections, together with the aim of
ensuring equal opportunity, time and space, and
the right to reply, including reasonable, equal
rates therefor, for public information campaigns
and forums among candidates, 2 on one hand,
and the imperatives of a republican and
democratic state, 3 together with its guaranteed
rights of suffrage, 4 freedom of speech and of the
press, 5 and the people's right to information, 6
on the other.
In a nutshell, the present petitions may be seen
as in search of the answer to the question how
does the Charter of a republican and democratic
State achieve a viable and acceptable balance
between liberty, without which, government
becomes an unbearable tyrant, and authority,
without which, society becomes an intolerable
and dangerous arrangement?
Assailed in these petitions are certain regulations
promulgated by the Commission on Elections
(COMELEC) relative to the conduct of the 2013
national and local elections dealing with political
advertisements. Specifically, the petitions
question the constitutionality of the limitations
placed on aggregate airtime allowed to
candidates and political parties, as well as the
requirements incident thereto, such as the need
to report the same, and the sanctions imposed for
violations.
The five (5) petitions before the Court put in issue
the alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 (Resolution)
limiting the broadcast and radio advertisements
of candidates and political parties for national
election positions to an aggregate total of one
hundred twenty (120) minutes and one hundred
eighty (180) minutes, respectively. They contend
75 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
that such restrictive regulation on allowable
broadcast time violates freedom of the press,
impairs the people's right to suffrage as well as
their right to information relative to the exercise
of their right to choose who to elect during the
forthcoming elections.
The heart of the controversy revolves upon the
proper interpretation of the limitation on the
number of minutes that candidates may use for
television and radio advertisements, as provided
in Section 6 of Republic Act No. 9006 (R.A. No.
9006), otherwise known as the Fair Election Act.
Pertinent portions of said provision state, thus:
AIaSTE
Sec. 6. Equal Access to Media Time and Space.
All registered parties and bona fide candidates
shall have equal access to media time and space.
The following guidelines may be amplified on by
the COMELEC:
xxx xxx xxx
6.2 (a) Each bona fide candidate or registered
political party for a nationally elective office shall
be entitled to not more than one hundred twenty
(120) minutes of television advertisement and
one hundred eighty (180) minutes of radio
advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political
party for a locally elective office shall be entitled
to not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any
broadcast station or entity to submit to the
COMELEC a copy of its broadcast logs and
certificates of performance for the review and
verification of the frequency, date, time and
duration of advertisements broadcast for any
candidate or political party.
During the previous elections of May 14, 2007
and May 10, 2010, COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A.
No. 9006, regarding airtime limitations, to mean
that a candidate is entitled to the aforestated
number of minutes "per station." 7 For the May
2013 elections, however, respondent COMELEC
promulgated Resolution No. 9615 dated January
15, 2013, changing the interpretation of said
candidates' and political parties' airtime limitation
for political campaigns or advertisements from a
"per station" basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC
Development Corporation (ABC), GMA Network,
Incorporated (GMA), Manila Broadcasting
Company, Inc. (MBC), Newsounds Broadcasting
Network, Inc. (NBN), and Radio Mindanao
Network, Inc. (RMN) are owners/operators of radio
and television networks in the Philippines, while
petitioner Kapisanan ng mga Brodkaster ng
Pilipinas (KBP) is the national organization of
broadcasting companies in the Philippines
representing operators of radio and television
stations and said stations themselves. They sent
their respective letters to the COMELEC
questioning the provisions of the aforementioned
Resolution, thus, the COMELEC held public
hearings. Thereafter, on February 1, 2013,
respondent issued Resolution No. 9631 amending
provisions of Resolution No. 9615. Nevertheless,
petitioners still found the provisions objectionable
and oppressive, hence, the present petitions.
All of the petitioners assail the following
provisions of the Resolution:
a) Section 7 (d), 8 which provides for a penalty of
suspension or revocation of an offender's
franchise or permit, imposes criminal liability
against broadcasting entities and their officers in
the event they sell airtime in excess of the size,
duration, or frequency authorized in the new
rules;
b) Section 9 (a), 9 which provides for an
"aggregate total" airtime instead of the previous
"per station" airtime for political campaigns or
advertisements, and also required prior COMELEC
approval for candidates' television and radio
guestings and appearances; and
c) Section 14, 10 which provides for a candidate's
"right to reply."
In addition, petitioner ABC also questions Section
1 (4) 11 thereof, which defines the term "political
advertisement" or "election propaganda," while
petitioner GMA further assails Section 35, 12
which states that any violation of said Rules shall
constitute an election offense.
On March 15, 2013, Senator Alan Peter S.
Cayetano (Petitioner-Intervenor) filed a Motion for
Leave to Intervene and to File and Admit the
Petition-in-Intervention, which was granted by the
Court per its Resolution dated March 19, 2013.
Petitioner-Intervenor also assails Section 9 (a) of
the Resolution changing the interpretation of
candidates' and political parties' airtime limitation
for political campaigns or advertisements from a
"per station" basis, to a "total aggregate" basis.
Petitioners allege that Resolutions No. 9615 and
9631, amending the earlier Resolution, are
unconstitutional and issued without jurisdiction or
with grave abuse of discretion amounting to lack
or excess of jurisdiction, for the reasons set forth
hereunder.
Petitioners posit that Section 9 (a) of the assailed
Resolution provides for a very restrictive
aggregate airtime limit and a vague meaning for
a proper computation of "aggregate total"
airtime, and violates the equal protection
guarantee, thereby defeating the intent and
purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which
imposes a notice requirement, is vague and
infringes on the constitutionally protected
freedom of speech, of the press and of
expression, and on the right of people to be
informed on matters of public concern.
Also, Section 9 (a) is a cruel and oppressive
regulation as it imposes an unreasonable and
almost impossible burden on broadcast mass
media of monitoring a candidate's or political
76 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
party's aggregate airtime, otherwise, it may incur
administrative and criminal liability. HCaDET
Further, petitioners claim that Section 7 (d) is null
and void for unlawfully criminalizing acts not
prohibited and penalized as criminal offenses by
R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a
candidate's or political party's "right to reply," is
likewise assailed to be unconstitutional for being
an improper exercise of the COMELEC's
regulatory powers; for constituting prior restraint
and infringing petitioners' freedom of expression,
speech and the press; and for being violative of
the equal protection guarantee.
In addition to the foregoing, petitioner GMA
further argues that the Resolution was
promulgated without public consultations, in
violation of petitioners' right to due process.
Petitioner ABC also avers that the Resolution's
definition of the terms "political advertisement"
and "election propaganda" suffers from
overbreadth, thereby producing a "chilling effect,"
constituting prior restraint.
On the other hand, respondent posits in its
Comment and Opposition 13 dated March 8,
2013, that the petition should be denied based on
the following reasons:
Respondent contends that the remedies of
certiorari and prohibition are not available to
petitioners, because the writ of certiorari is only
available against the COMELEC's adjudicatory or
quasi-judicial powers, while the writ of prohibition
only lies against the exercise of judicial, quasi-
judicial or ministerial functions. Said writs do not
lie against the COMELEC's administrative or rule-
making powers.
Respondent likewise alleges that petitioners do
not have locus standi, as the constitutional rights
and freedoms they enumerate are not personal to
them, rather, they belong to candidates, political
parties and the Filipino electorate in general, as
the limitations are imposed on candidates, not on
media outlets. It argues that petitioners' alleged
risk of exposure to criminal liability is insufficient
to give them legal standing as said "fear of
injury" is highly speculative and contingent on a
future act.
Respondent then parries petitioners' attack on
the alleged infirmities of the Resolution's
provisions.
Respondent maintains that the per candidate rule
or total aggregate airtime limit is in accordance
with R.A. No. 9006 as this would truly give life to
the constitutional objective to equalize access to
media during elections. It sees this as a more
effective way of levelling the playing field
between candidates/political parties with
enormous resources and those without much.
Moreover, the COMELEC's issuance of the
assailed Resolution is pursuant to Section 4,
Article IX (C) of the Constitution which vests on
the COMELEC the power to supervise and
regulate, during election periods, transportation
and other public utilities, as well as mass media,
to wit:

Sec. 4. The Commission may, during the election
period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the
operation of transportation and other public
utilities, media of communication or information,
all grants, special privileges, or concessions
granted by the Government or any subdivision,
agency, or instrumentality thereof, including any
government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall
aim to ensure equal opportunity, and equal rates
therefor, for public information campaigns and
forums among candidates in connection with the
objective of holding free, orderly, honest,
peaceful, and credible elections.
This being the case, then the Resolutions cannot
be said to have been issued with grave abuse of
discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are
not vague because the assailed Resolutions have
given clear and adequate mechanisms to protect
broadcast stations from potential liability arising
from a candidate's or party's violation of airtime
limits by putting in the proviso that the station
"may require buyer to warrant under oath that
such purchase [of airtime] is not in excess of size,
duration or frequency authorized by law or these
rules." Furthermore, words should be understood
in the sense that they have in common usage,
and should be given their ordinary meaning.
Thus, in the provision for the right to reply,
"charges" against candidates or parties must be
understood in the ordinary sense, referring to
accusations or criticisms.
Respondent also sees no prior restraint in the
provisions requiring notice to the COMELEC for
appearances or guestings of candidates in bona
fide news broadcasts. It points out that the fact
that notice may be given 24 hours after first
broadcast only proves that the mechanism is for
monitoring purposes only, not for censorship.
Further, respondent argues, that for there to be
prior restraint, official governmental restrictions
on the press or other forms of expression must be
done in advance of actual publication or
dissemination. Moreover, petitioners are only
required to inform the COMELEC of
candidates'/parties' guestings, but there is no
regulation as to the content of the news or the
expressions in news interviews or news
documentaries. Respondent then emphasized
that the Supreme Court has held that freedom of
speech and the press may be limited in light of
the duty of the COMELEC to ensure equal access
to opportunities for public service.
With regard to the right to reply provision,
respondent also does not consider it as restrictive
of the airing of bona fide news broadcasts. More
importantly, it stressed, the right to reply is
enshrined in the Constitution, and the assailed
Resolutions provide that said right can only be
had after going through administrative due
process. The provision was also merely lifted from
Section 10 of R.A. No. 9006, hence, petitioner
ABC is actually attacking the constitutionality of
R.A. No. 9006, which cannot be done through a
collateral attack. HSaIET
77 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Next, respondent counters that there is no merit
to ABC's claim that the Resolutions' definition of
"political advertisement" or "election
propaganda" suffers from overbreadth, as the
extent or scope of what falls under said terms is
clearly stated in Section 1 (4) of Resolution No.
9615.
It is also respondent's view that the nationwide
aggregate total airtime does not violate the equal
protection clause, because it does not make any
substantial distinctions between national and
regional and/or local broadcast stations, and even
without the aggregate total airtime rule,
candidates and parties are likely to be more
inclined to advertise in national broadcast
stations.
Respondent likewise sees no merit in petitioners'
claim that the Resolutions amount to taking of
private property without just compensation.
Respondent emphasizes that radio and television
broadcasting companies do not own the airwaves
and frequencies through which they transmit
broadcast signals; they are merely given the
temporary privilege to use the same. Since they
are merely enjoying a privilege, the same may be
reasonably burdened with some form of public
service, in this case, to provide candidates with
the opportunity to reply to charges aired against
them.
Lastly, respondent contends that the public
consultation requirement does not apply to
constitutional commissions such as the COMELEC,
pursuant to Section 1, Chapter I, Book VII of the
Administrative Code of 1987. Indeed, Section 9,
Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. (1) If not
otherwise required by law, an agency shall, as far
as practicable, publish or circulate notices of
proposed rules and afford interested parties the
opportunity to submit their views prior to the
adoption of any rule.
However, Section 1, Chapter 1, Book VII of said
Code clearly provides:
Section 1. Scope. This Book shall be applicable
to all agencies as defined in the next succeeding
section, except the Congress, the Judiciary, the
Constitutional Commissions, military
establishments in all matters relating exclusively
to Armed Forces personnel, the Board of Pardons
and Parole, and state universities and colleges.
Nevertheless, even if public participation is not
required, respondent still conducted a meeting
with representatives of the KBP and various
media outfits on December 26, 2012, almost a
month before the issuance of Resolution No.
9615.
On April 2, 2013, petitioner GMA filed its Reply,
14 where it advanced the following counter-
arguments:
According to GMA, a petition for certiorari is the
proper remedy to question the herein assailed
Resolutions, which should be considered as a
"decision, order or ruling of the Commission" as
mentioned in Section 1, Rule 37 of the COMELEC
Rules of Procedure which provides:
Section 1. Petition for Certiorari; and Time to File.
Unless otherwise provided by law, or by any
specific provisions in these Rules, any decision,
order or ruling of the Commission may be brought
to the Supreme Court on certiorari by the
aggrieved party within thirty (30) days from its
promulgation.
GMA further stressed that this case involves
national interest, and the urgency of the matter
justifies its resort to the remedy of a petition for
certiorari.
Therefore, GMA disagrees with the COMELEC's
position that the proper remedy is a petition for
declaratory relief because such action only asks
the court to make a proper interpretation of the
rights of parties under a statute or regulation.
Such a petition does not nullify the assailed
statute or regulation, or grant injunctive relief,
which petitioners are praying for in their petition.
Thus, GMA maintains that a petition for certiorari
is the proper remedy.
GMA further denies that it is making a collateral
attack on the Fair Election Act, as it is not
attacking said law. GMA points out that it has
stated in its petition that the law in fact allows
the sale or donation of airtime for political
advertisements and does not impose criminal
liability against radio and television stations.
What it is assailing is the COMELEC's erroneous
interpretation of the law's provisions by declaring
such sale and/or donation of airtime unlawful,
which is contrary to the purpose of the Fair
Election Act.
GMA then claims that it has legal standing to
bring the present suit because:
. . . First, it has personally suffered a threatened
injury in the form of risk of criminal liability
because of the alleged unconstitutional and
unlawful conduct of respondent COMELEC in
expanding what was provided for in R.A. No.
9006. Second, the injury is traceable to the
challenged action of respondent COMELEC, that
is, the issuance of the assailed Resolutions. Third,
the injury is likely to be redressed by the remedy
sought in petitioner GMA's Petition, among
others, for the Honorable Court to nullify the
challenged pertinent provisions of the assailed
Resolutions. 15 EaSCAH
On substantive issues, GMA first argues that the
questioned Resolutions are contrary to the
objective and purpose of the Fair Election Act. It
points out that the Fair Election Act even repealed
the political ad ban found in the earlier law, R.A.
No. 6646. The Fair Election Act also speaks of
"equal opportunity" and "equal access," but said
law never mentioned equalizing the economic
station of the rich and the poor, as a declared
policy. Furthermore, in its opinion, the supposed
correlation between candidates' expenditures for
TV ads and actually winning the elections, is a
mere illusion, as there are other various factors
responsible for a candidate's winning the
election. GMA then cites portions of the
deliberations of the Bicameral Conference
78 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Committee on the bills that led to the enactment
of the Fair Election Act, and alleges that this
shows the legislative intent that airtime allocation
should be on a "per station" basis. Thus, GMA
claims it was arbitrary and a grave abuse of
discretion for the COMELEC to issue the present
Resolutions imposing airtime limitations on an
"aggregate total" basis.
It is likewise insisted by GMA that the assailed
Resolutions impose an unconstitutional burden on
them, because their failure to strictly monitor the
duration of total airtime that each candidate has
purchased even from other stations would expose
their officials to criminal liability and risk losing
the station's good reputation and goodwill, as
well as its franchise. It argues that the wordings
of the Resolutions belie the COMELEC's claim that
petitioners would only incur liability if they
"knowingly" sell airtime beyond the limits
imposed by the Resolutions, because the element
of knowledge is clearly absent from the provisions
thereof. This makes the provisions have the
nature of malum prohibitum.
Next, GMA also says that the application of the
aggregate airtime limit constitutes prior restraint
and is unconstitutional, opining that "[t]he
reviewing power of respondent COMELEC and its
sole judgment of a news event as a political
advertisement are so pervasive under the
assailed Resolutions, and provoke the distastes or
chilling effect of prior restraint" 16 as even a
legitimate exercise of a constitutional right might
expose it to legal sanction. Thus, the
governmental interest of leveling the playing field
between rich and poor candidates cannot justify
the restriction on the freedoms of expression,
speech and of the press.
On the issue of lack of prior public participation,
GMA cites Section 82 of the Omnibus Election
Code, pertinent portions of which provide, thus:
Section 82. Lawful election propaganda. Lawful
election propaganda shall include:
xxx xxx xxx
All other forms of election propaganda not
prohibited by this Code as the Commission may
authorize after due notice to all interested parties
and hearing where all the interested parties were
given an equal opportunity to be heard: Provided,
That the Commission's authorization shall be
published in two newspapers of general
circulation throughout the nation for at least
twice within one week after the authorization has
been granted.
There having been no prior public consultation
held, GMA contends that the COMELEC is guilty of
depriving petitioners of its right to due process of
law.
GMA then concludes that it is also entitled to a
temporary restraining order, because the
implementation of the Resolutions in question will
cause grave and irreparable damage to it by
disrupting and emasculating its mandate to
provide television and radio services to the
public, and by exposing it to the risk of incurring
criminal and administrative liability by requiring it
to perform the impossible task of surveillance and
monitoring, or the broadcasts of other radio and
television stations.
Thereafter, on April 4, 2013, the COMELEC,
through the Office of the Solicitor General (OSG),
filed a Supplemental Comment and Opposition 17
where it further expounded on the legislative
intent behind the Fair Election Act, also quoting
portions of the deliberations of the Bicameral
Conference Committee, allegedly adopting the
Senate Bill version setting the computation of
airtime limits on a per candidate, not per station,
basis. Thus, as enacted into law, the wordings of
Section 6 of the Fair Election Act shows that the
airtime limit is imposed on a per candidate basis,
rather than on a per station basis. Furthermore,
the COMELEC states that petitioner-intervenor
Senator Cayetano is wrong in arguing that there
should be empirical data to support the need to
change the computation of airtime limits from a
per station basis to a per candidate basis,
because nothing in law obligates the COMELEC to
support its Resolutions with empirical data, as
said airtime limit was a policy decision dictated
by the legislature itself, which had the necessary
empirical and other data upon which to base said
policy decision.
The COMELEC then points out that Section 2 (7),
18 Article IX (C) of the Constitution empowers it
to recommend to Congress effective measures to
minimize election spending and in furtherance of
such constitutional power, the COMELEC issued
the questioned Resolutions, in faithful
implementation of the legislative intent and
objectives of the Fair Election Act. aDIHTE
The COMELEC also dismisses Senator Cayetano's
fears that unauthorized or inadvertent inclusion
of his name, initial, image, brand, logo, insignia
and/or symbol in tandem advertisements will be
charged against his airtime limits by pointing out
that what will be counted against a candidate's
airtime and expenditures are those
advertisements that have been paid for or
donated to them to which the candidate has
given consent.
With regard to the attack that the total aggregate
airtime limit constitutes prior restraint or undue
abridgement of the freedom of speech and
expression, the COMELEC counters that "the
Resolutions enjoy constitutional and
congressional imprimatur. It is the Constitution
itself that imposes the restriction on the freedoms
of speech and expression, during election period,
to promote an important and significant
governmental interest, which is to equalize, as far
as practicable, the situation of rich and poor
candidates by preventing the former from
enjoying the undue advantage offered by huge
campaign 'war chests.'" 19
Lastly, the COMELEC also emphasizes that there
is no impairment of the people's right to
information on matters of public concern,
because in this case, the COMELEC is not
withholding access to any public record.
On April 16, 2013, this Court issued a Temporary
Restraining Order 20 (TRO) in view of the urgency
involved and to prevent irreparable injury that
79 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
may be caused to the petitioners if respondent
COMELEC is not enjoined from implementing
Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent
Motion to Lift Temporary Restraining Order and
Motion for Early Resolution of the Consolidated
Petitions. 21
On May 8, 2013, petitioners ABS-CBN and the KBP
filed its Opposition/Comment 22 to the said
Motion. Not long after, ABC followed suit and filed
its own Opposition to the Motion 23 filed by the
respondent.
In the interim, respondent filed a Second
Supplemental Comment and Opposition 24 dated
April 8, 2013.
In the Second Supplemental Comment and
Opposition, respondent delved on points which
were not previously discussed in its earlier
Comment and Supplemental Comment,
particularly those raised in the petition filed by
petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the
proper remedy to question the Constitutionality of
the assailed Resolutions and that petitioners ABS-
CBN and KBP have no locus standi to file the
present petition.
Respondent posits that contrary to the contention
of petitioners, the legislative history of R.A. No.
9006 conclusively shows that congress intended
the airtime limits to be computed on a "per
candidate" and not on a "per station" basis. In
addition, the legal duty of monitoring lies with the
COMELEC. Broadcast stations are merely required
to submit certain documents to aid the COMELEC
in ensuring that candidates are not sold airtime in
excess of the allowed limits.
Also, as discussed in the earlier Comment, the
prior notice requirement is a mechanism
designed to inform the COMELEC of the
appearances or guesting of candidates in bona
fide news broadcasts. It is for monitoring
purposes only, not censorship. It does not control
the subject matter of news broadcasts in anyway.
Neither does it prevent media outlets from
covering candidates in news interviews, news
events, and news documentaries, nor prevent the
candidates from appearing thereon.
As for the right to reply, respondent insists that
the right to reply provision cannot be considered
a prior restraint on the freedoms of expression,
speech and the press, as it does not in any way
restrict the airing of bona fide new broadcasts.
Media entities are free to report any news event,
even if it should turn out to be unfavourable to a
candidate or party. The assailed Resolutions
merely give the candidate or party the right to
reply to such charges published or aired against
them in news broadcasts.
Moreover, respondent contends that the
imposition of the penalty of suspension and
revocation of franchise or permit for the sale or
donation of airtime beyond the allowable limits is
sanctioned by the Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013.
On June 4, 2013, the Court issued a Resolution 25
consolidating the case with the rest of the
petitions and requiring respondent to comment
thereon.
On October 10, 2013, respondent filed its Third
Supplemental Comment and Opposition. 26
Therein, respondent stated that the petition filed
by RMN repeats the issues that were raised in the
previous petitions. Respondent, likewise,
reiterated its arguments that certiorari in not the
proper remedy to question the assailed
resolutions and that RMN has no locus standi to
file the present petition. Respondent maintains
that the arguments raised by RMN, like those
raised by the other petitioners are without merit
and that RMN is not entitled to the injunctive
relief sought.
The petition is partly meritorious. aSTHDc
At the outset, although the subject of the present
petitions are Resolutions promulgated by the
COMELEC relative to the conduct of the 2013
national and local elections, nevertheless the
issues raised by the petitioners have not been
rendered moot and academic by the conclusion of
the 2013 elections. Considering that the matters
elevated to the Court for resolution are
susceptible to repetition in the conduct of future
electoral exercises, these issues will be resolved
in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally
take a backseat when issues of substantial and
transcendental importance are presented before
the Court. So the Court does again in this
particular case.
Proper Remedy
Respondent claims that certiorari and prohibition
are not the proper remedies that petitioners have
taken to question the assailed Resolutions of the
COMELEC. Technically, respondent may have a
point. However, considering the very important
and pivotal issues raised, and the limited time,
such technicality should not deter the Court from
having to make the final and definitive
pronouncement that everyone else depends for
enlightenment and guidance. "[T]his Court has in
the past seen fit to step in and resolve petitions
despite their being the subject of an improper
remedy, in view of the public importance of the
issues raised therein. 27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought
before the Court, the issue of locus standi is
raised to question the personality of the parties
invoking the Court's jurisdiction. The Court has
routinely made reference to a liberalized stance
when it comes to petitions raising issues of
transcendental importance to the country.
Invariably, after some discussions, the Court
would eventually grant standing. 28
In this particular case, respondent also questions
the standing of the petitioners. We rule for the
petitioners. For petitioner-intervenor Senator
80 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
Cayetano, he undoubtedly has standing since he
is a candidate whose ability to reach out to the
electorate is impacted by the assailed
Resolutions.
For the broadcast companies, they similarly have
the standing in view of the direct injury they may
suffer relative to their ability to carry out their
tasks of disseminating information because of the
burdens imposed on them. Nevertheless, even in
regard to the broadcast companies invoking the
injury that may be caused to their customers or
the public those who buy advertisements and
the people who rely on their broadcasts what
the Court said in White Light Corporation v. City
of Manila 29 may dispose of the question. In that
case, there was an issue as to whether owners of
establishments offering "wash-up" rates may
have the requisite standing on behalf of their
patrons' equal protection claims relative to an
ordinance of the City of Manila which prohibited
"short-time" or "wash-up" accommodation in
motels and similar establishments. The Court
essentially condensed the issue in this manner:
"[T]he crux of the matter is whether or not these
establishments have the requisite standing to
plead for protection of their patrons' equal
protection rights." 30 The Court then went on to
hold:
Standing or locus standi is the ability of a party to
demonstrate to the court sufficient connection to
and harm from the law or action challenged to
support that party's participation in the case.
More importantly, the doctrine of standing is built
on the principle of separation of powers, sparing
as it does unnecessary interference or
invalidation by the judicial branch of the actions
rendered by its co-equal branches of government.
The requirement of standing is a core component
of the judicial system derived directly from the
Constitution. The constitutional component of
standing doctrine incorporates concepts which
concededly are not susceptible of precise
definition. In this jurisdiction, the extancy of "a
direct and personal interest" presents the most
obvious cause, as well as the standard test for a
petitioner's standing. In a similar vein, the United
States Supreme Court reviewed and elaborated
on the meaning of the three constitutional
standing requirements of injury, causation, and
redressability in Allen v. Wright.
Nonetheless, the general rules on standing admit
of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and,
especially in the Philippines, the doctrine of
transcendental importance.
For this particular set of facts, the concept of
third party standing as an exception and the
overbreadth doctrine are appropriate. . . .
xxx xxx xxx
American jurisprudence is replete with examples
where parties-in-interest were allowed standing
to advocate or invoke the fundamental due
process or equal protection claims of other
persons or classes of persons injured by state
action. . . .
xxx xxx xxx
Assuming arguendo that petitioners do not have
a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth
doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect
permitted to raise the rights of third parties.
Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine
applies when a statute needlessly restrains even
constitutionally guaranteed rights. In this case,
the petitioners claim that the Ordinance makes a
sweeping intrusion into the right to liberty of their
clients. We can see that based on the allegations
in the petition, the Ordinance suffers from
overbreadth. IHTaCE
We thus recognize that the petitioners have a
right to assert the constitutional rights of their
clients to patronize their establishments for a
"wash-rate" time frame. 31
If in regard to commercial undertakings, the
owners may have the right to assert a
constitutional right of their clients, with more
reason should establishments which publish and
broadcast have the standing to assert the
constitutional freedom of speech of candidates
and of the right to information of the public, not
to speak of their own freedom of the press. So,
we uphold the standing of petitioners on that
basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a
radical departure from the previous COMELEC
resolutions relative to the airtime limitations on
political advertisements. This essentially consists
in computing the airtime on an aggregate basis
involving all the media of broadcast
communications compared to the past where it
was done on a per station basis. Thus, it becomes
immediately obvious that there was effected a
drastic reduction of the allowable minutes within
which candidates and political parties would be
able to campaign through the air. The question is
accordingly whether this is within the power of
the COMELEC to do or not. The Court holds that it
is not within the power of the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime
limits directly flows from the Fair Election Act
(R.A. No. 9006 [2001]) 32 one hundred (120)
minutes of television advertisement and one-
hundred eighty (180) minutes for radio
advertisement. For the 2004 elections, the
respondent COMELEC promulgated Resolution No.
6520 33 implementing the airtime limits by
applying said limitation on a per station basis. 34
Such manner of determining airtime limits was
likewise adopted for the 2007 elections, through
Resolution No. 7767. 35 In the 2010 elections,
under Resolution No. 8758, 36 the same was
again adopted. But for the 2013 elections, the
COMELEC, through Resolution No. 9615, as
amended by Resolution No. 9631, chose to
aggregate the total broadcast time among the
different broadcast media, thus:
Section 9. Requirements and/or Limitations on the
Use of Election Propaganda through Mass Media.
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All parties and bona fide candidates shall have
equal access to media time and space for their
election propaganda during the campaign period
subject to the following requirements and/or
limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or
party may use for their broadcast advertisements
or election propaganda shall be, as follows:
For Not more than an aggregate total of one
Candidates/Registered hundred (120)
minutes of television
Political parties for a advertising, whether
appearing on national,
National Elective regional, or local, free or
cable television,
Position and one hundred eighty (180)
minutes of
radio advertising, whether airing on
national, regional, or local radio, whether
by purchase or donation
For Not more than an aggregate total of sixty
Candidates/Registered (60) minutes of
television advertising,
Political parties for a whether appearing on
national, regional, or
Elective Position local, free or cable
television, and ninety (90)
minutes of radio advertising, whether
airing on national, regional, or local radio,
whether by purchase or donation.
In cases where two or more candidates or parties
whose names, initials, images, brands, logos,
insignias, color motifs, symbols, or forms of
graphical representations are displayed,
exhibited, used, or mentioned together in the
broadcast election propaganda or
advertisements, the length of time during which
they appear or are being mentioned or promoted
will be counted against the airtime limits allotted
for the said candidates or parties and the cost of
the said advertisement will likewise be
considered as their expenditures, regardless of
whoever paid for the advertisements or to whom
the said advertisements were donated.
xxx xxx xxx 37
Corollarily, petitioner-intervenor, Senator
Cayetano, alleges:
6.15. The change in the implementation of
Section 6 of R.A. 9006 was undertaken by
respondent Comelec without consultation with
the candidates for the 2013 elections, affected
parties such as media organizations, as well as
the general public. Worse, said change was put
into effect without explaining the basis therefor
and without showing any data in support of such
change. Respondent Comelec merely maintained
that such action "is meant to level the playing
field between the moneyed candidates and those
who don't have enough resources," without
particularizing the empirical data upon which
such a sweeping statement was based. This was
evident in the public hearing held on 31 January
2013 where petitioner GMA, thru counsel,
explained that no empirical data on the excesses
or abuses of broadcast media were brought to the
attention of the public by respondent Comelec, or
even stated in the Comelec Resolution No. 9615.
Thus cEaSHC
xxx xxx xxx
Chairman Brillantes
So if we can regulate and amplify, we may
amplify meaning we can expand if we want to.
But the authority of the Commission is if we do
not want to amplify and we think that the 120 or
180 is okay we cannot be compelled to amplify.
We think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis
of the resolution is found in the law and the law
has been enterpreted (sic) before in 2010 to be
120 per station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify
is with the Commission on Elections. Nobody can
encroach in our right to amplify. Now, if in 2010
the Commission felt that per station or per
network is the rule then that is the prerogative of
the Commission then they could amplify it to
expand it. If the current Commission feels that
120 is enough for the particular medium like TV
and 180 for radio, that is our prerogative. How
can you encroach and what is unconstitutional
about it?
Atty. Lucila
We are not questioning the authority of the
Honorable Commission to regulate Your Honor,
we are just raising our concern on the manner of
regulation because as it is right now, there is a
changing mode or sentiments of the Commission
and the public has the right to know, was there
rampant overspending on political ads in 2010,
we were not informed Your Honor. Was there
abuse of the media in 2010, we were not
informed Your Honor. So we would like to know
what is the basis of the sudden change in this
limitation, Your Honor.. And law must have a
consistent interpretation that [is] our position,
Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to
this representation counsel, is that if the
Constitution allows us to regulate and then it
gives us the prerogative to amplify then the
prerogative to amplify you should leave this to
the discretion of the Commission. Which means if
previous Commissions felt that expanding it
should be part of our authority that was a valid
exercise if we reduce it to what is provided for by
law which is 120-180 per medium, TV, radio, that
is also within the law and that is still within our
prerogative as provided for by the Constitution. If
you say we have to expose the candidates to the
public then I think the reaction should come, the
negative reaction should come from the
candidates not from the media, unless you have
82 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
some interest to protect directly. Is there any
interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in
this election Your Honor and we have been
constantly (sic) as the resolution says and even in
the part involved because you will be getting
some affirmative action time coming from the
media itself and Comelec time coming from the
media itself. So we could like to be both involved
in the whole process of the exercise of the
freedom of suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional
provision as well as the provision of 9006 is
actually to level the playing field. That should be
the paramount consideration. If we allow
everybody to make use of all their time and all
radio time and TV time then there will be
practically unlimited use of the mass media. . . .
Atty. Lucila
Was there in 2010 Your Honor, was there any
data to support that there was an unlimited and
abuse of a (sic) political ads in the mass media
that became the basis of this change in
interpretation Your Honor? We would like to know
about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 2010?
Atty. Lucila
As far as the network is concern, there was none
Your Honor.
Chairman Brillantes
There was none . . .
Atty. Lucila
I'm sorry, Your Honor . . .
Chairman Brillantes
Yes, there was no abuse, okay, but there was
some advantage given to those who took . . . who
had the more moneyed candidates took
advantage of it. TCaADS
Atty. Lucila
But that is the fact in life, Your Honor there are
poor candidates, there are rich candidates. No
amount of law or regulation can even level the
playing filed (sic) as far as the economic station
in life of the candidates are concern (sic) our
Honor. 38
Given the foregoing observations about what
happened during the hearing, Petitioner-
Intervenor went on to allege that:
6.16. Without any empirical data upon which to
base the regulatory measures in Section 9 (a),
respondent Comelec arbitrarily changed the rule
from per station basis to aggregate airtime basis.
Indeed, no credence should be given to the
cliched explanation of respondent Comelec (i.e.,
leveling the playing field) in its published
statements which in itself is a mere reiteration of
the rationale for the enactment of the political ad
ban of Republic Act No. 6646, and which has
likewise been foisted when said political ad ban
was lifted by R.A. 9006. 39
From the foregoing, it does appear that the
COMELEC did not have any other basis for coming
up with a new manner of determining allowable
time limits except its own idea as to what should
be the maximum number of minutes based on its
exercise of discretion as to how to level the
playing field. The same could be encapsulized in
the remark of the COMELEC Chairman that "if the
Constitution allows us to regulate and then it
gives us the prerogative to amplify then the
prerogative to amplify you should leave this to
the discretion of the Commission." 40
The Court could not agree with what appears as a
nonchalant exercise of discretion, as expounded
anon.
b. COMELEC is duty bound to come up
with reasonable basis for changing the
interpretation and implementation of
the airtime limits
There is no question that the COMELEC is the
office constitutionally and statutorily authorized
to enforce election laws but it cannot exercise its
powers without limitations or reasonable basis.
It could not simply adopt measures or regulations
just because it feels that it is the right thing to do,
in so far as it might be concerned. It does have
discretion, but such discretion is something that
must be exercised within the bounds and intent
of the law. The COMELEC is not free to simply
change the rules especially if it has consistently
interpreted a legal provision in a particular
manner in the past. If ever it has to change the
rules, the same must be properly explained with
sufficient basis.
Based on the transcripts of the hearing
conducted by the COMELEC after it had already
promulgated the Resolution, the respondent did
not fully explain or justify the change in
computing the airtime allowed candidates and
political parties, except to make reference to the
need to "level the playing field." If the "per
station" basis was deemed enough to comply
with that objective in the past, why should it now
be suddenly inadequate? And, the short answer
to that from the respondent, in a manner which
smacks of overbearing exercise of discretion, is
that it is within the discretion of the COMELEC. As
quoted in the transcript, "the right to amplify is
with the COMELEC. Nobody can encroach in our
right to amplify. Now, if in 2010 the Commission
felt that per station or per network is the rule
then that is the prerogative of the Commission
then they could amplify it to expand it. If the
current Commission feels that 120 is enough for
the particular medium like TV and 180 for radio,
that is our prerogative. How can you encroach
and what is unconstitutional about it?" 41
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There is something basically wrong with that
manner of explaining changes in administrative
rules. For one, it does not really provide a good
basis for change. For another, those affected by
such rules must be given a better explanation
why the previous rules are no longer good
enough. As the Court has said in one case:
While stability in the law, particularly in the
business field, is desirable, there is no demand
that the NTC slavishly follow precedent. However,
we think it essential, for the sake of clarity and
intellectual honesty, that if an administrative
agency decides inconsistently with previous
action, that it explain thoroughly why a different
result is warranted, or if need be, why the
previous standards should no longer apply or
should be overturned. Such explanation is
warranted in order to sufficiently establish a
decision as having rational basis. Any
inconsistent decision lacking thorough,
ratiocination in support may be struck down as
being arbitrary. And any decision with absolutely
nothing to support it is a nullity. 42
What the COMELEC came up with does not
measure up to that level of requirement and
accountability which elevates administrative rules
to the level of respectability and acceptability.
Those governed by administrative regulations are
entitled to a reasonable and rational basis for any
changes in those rules by which they are
supposed to live by, especially if there is a radical
departure from the previous ones.
c. The COMELEC went beyond the
authority granted it by the law in
adopting "aggregate" basis in the
determination of allowable airtime
The law, which is the basis of the regulation
subject of these petitions, pertinently provides:
THCSAE
6.2. (a) Each bona fide candidate or registered
political party for a nationally elective office shall
be entitled to not more than one hundred twenty
(120) minutes of television advertisement and
one hundred eighty (180) minutes of radio
advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered
political party for a locally elective office shall be
entitled to not more than sixty (60) minutes of
television advertisement and ninety (90) minutes
of radio advertisement whether by purchase or
donation; . . .
The law, on its face, does not justify a conclusion
that the maximum allowable airtime should be
based on the totality of possible broadcast in all
television or radio stations. Senator Cayetano has
called our attention to the legislative intent
relative to the airtime allowed that it should be
on a "per station" basis. 43
This is further buttressed by the fact that the Fair
Election Act (R.A. No. 9006) actually repealed the
previous provision, Section 11 (b) of Republic Act
No. 6646, 44 which prohibited direct political
advertisements the so-called "political ad ban."
If under the previous law, no candidate was
allowed to directly buy or procure on his own his
broadcast or print campaign advertisements, and
that he must get it through the COMELEC Time or
COMELEC Space, R.A. No. 9006 relieved him or
her from that restriction and allowed him or her
to broadcast time or print space subject to the
limitations set out in the law. Congress, in
enacting R.A. No. 9006, felt that the previous law
was not an effective and efficient way of giving
voice to the people. Noting the debilitating
effects of the previous law on the right of suffrage
and Philippine democracy, Congress decided to
repeal such rule by enacting the fair Election Act.
In regard to the enactment of the new law, taken
in the context of the restrictive nature of the
previous law, the sponsorship speech of Senator
Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the
Omnibus Election Code and Sections 10 and 11 of
RA 6646. In view of the importance of their
appeal in connection with the thrusts of the bill, I
hereby quote these sections in full:
"SEC. 85. Prohibited forms of election
propaganda. It shall be unlawful:
"(a) To print, publish, post or distribute any
poster, pamphlet, circular, handbill, or printed
matter urging voters to vote for or against any
candidate unless they hear the names and
addresses of the printed and payor as required in
Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or
display any billboard, tinplate-poster, balloons
and the like, of whatever size, shape, form or
kind, advertising for or against any candidate or
political party;
"(c) To purchase, manufacture, request, distribute
or accept electoral propaganda gadgets, such as
pens, lighters, fans of whatever nature,
flashlights, athletic goods or materials, wallets,
shirts, hats, bandannas, matches, cigarettes and
the like, except that campaign supporters
accompanying a candidate shall be allowed to
wear hats and/or shirts or T shirts advertising a
candidate;
"(d) To show or display publicly any
advertisement or propaganda for or against any
candidate by means of cinematography, audio-
visual units or other screen projections except
telecasts which may be allowed as hereinafter
provided; and
"(e) For any radio broadcasting or television
station to sell or give free of charge airtime for
campaign and other political purposes except as
authorized in this Code under the rules and
regulations promulgated by the Commission
pursuant thereto;
"Any prohibited election propaganda gadget or
advertisement shall be stopped, confiscated or
torn down by the representative of the
Commission upon specific authority of the
Commission."
"SEC. 10. Common Poster Areas. The
Commission shall designate common poster
areas in strategic public places such as markets,
barangay centers and the like wherein candidates
84 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
can post, display or exhibit election propaganda
to announce or further their candidacy.
"Whenever feasible common billboards may be
installed by the Commission and/or non-partisan
private or civic organizations which the
Commission may authorize whenever available,
after due notice and hearing, in strategic areas
where it may readily be seen or read, with the
heaviest pedestrian and/or vehicular traffic in the
city or municipality. STIcaE
The space in such common poster areas or
billboards shall be allocated free of charge, ifs
feasible, equitably and impartially among the
candidates in the province, city or municipality.
"SEC. 11. Prohibited Forms of Election
Propaganda. In addition to the forms of
election propaganda prohibited under Section 85
of Batas Pambansa Blg. 881, it shall be unlawful:
(a) to draw, paint, inscribe, write, post, display or
publicly exhibit any election propaganda in any
place, whether private or public, except in
common poster areas and/or billboards provided
in the immediately preceding section, at the
candidate's own residence, or at the campaign
headquarters of the candidate or political party:
Provided, That such posters or election
propaganda shall in no case exceed two (2) feet
by three (3) feet in area; Provided, further, That
at the site of and on the occasion of a public
meeting or rally, streamers, not more than two
(2) feet and not exceeding three (3) feet by eight
(8) each may be displayed five (5) days before
the date of the meeting or rally, and shall be
removed within twenty-four (24) hours after said
meeting or rally; and
"(b) For any newspapers, radio broadcasting or
television station, or other mass media, or any
person making use of the mass media to sell or
give for free of charge print space or air time for
campaign or other political purposes except to
the Commission as provided under Section 90
and 92 of Batas Pambansa 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."
The repeal of the provision on the Common
Poster Area implements the strong
recommendations of the Commission on Elections
during the hearings. It also seeks to apply the
doctrine enunciated by the Supreme Court in the
case of Blo Umpar Adiong vs. Commission on
Elections, 207 SCRA 712, 31 March 1992. Here a
unanimous Supreme Court ruled: The COMELEC's
prohibition on the posting of decals and stickers
on "mobile" places whether public or private
except [in] designated areas provided for by the
COMELEC itself is null and void on constitutional
grounds.
For the foregoing reasons, we commend to our
colleagues the early passage of Senate Bill No.
1742. In so doing, we move one step towards
further ensuring "free, orderly, honest, peaceful
and credible elections" as mandated by the
Constitution. 45
Given the foregoing background, it is therefore
ineluctable to conclude that Congress intended to
provide a more expansive and liberal means by
which the candidates, political parties, citizens
and other stake holders in the periodic electoral
exercise may be given a chance to fully explain
and expound on their candidacies and platforms
of governance, and for the electorate to be given
a chance to know better the personalities behind
the candidates. In this regard, the media is also
given a very important part in that undertaking of
providing the means by which the political
exercise becomes an interactive process. All of
these would be undermined and frustrated with
the kind of regulation that the respondent came
up with.
The respondent gave its own understanding of
the import of the legislative deliberations on the
adoption of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows
that Congress intended to impose the per
candidate or political party aggregate total
airtime limits on political advertisements and
election propaganda. This is evidenced by the
dropping of the "per day per station" language
embodied in both versions of the House of
Representatives and Senate bills in favour of the
"each candidate" and "not more than" limitations
now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and
Senate Bill No. 1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby
amended to read as follows:
Sec. 86. Regulation of Election Propaganda
Through Mass Media.
xxx xxx xxx
A) The total airtime available to the candidate
and political party, whether by purchase or by
donation, shall be limited to five (5) minutes per
day in each television, cable television and radio
stations during the applicable campaign period.
TSIEAD
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time.
All registered parties and bona fide candidates
shall have equal access to media space and time.
The following guidelines may be amplified by the
COMELEC.
xxx xxx xxx
2. The total airtime available for each registered
party and bona fide candidate whether by
purchase or donation shall not exceed a total of
one (1) minute per day per television or radio
station. (Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it
can be clearly seen that the legislature intended
the aggregate airtime limits to be computed on
per candidate or party basis. Otherwise, if the
legislature intended the computation to be on per
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station basis, it could have left the original "per
day per station" formulation. 46
The Court does not agree. It cannot bring itself to
read the changes in the bill as disclosing an
intent that the COMELEC wants this Court to put
on the final language of the law. If anything, the
change in language meant that the computation
must not be based on a "per day" basis for each
television or radio station. The same could not
therefore lend itself to an understanding that the
total allowable time is to be done on an
aggregate basis for all television or radio stations.
Clearly, the respondent in this instance went
beyond its legal mandate when it provided for
rules beyond what was contemplated by the law
it is supposed to implement. As we held in Lokin,
Jr. v. Commission on Elections: 47
The COMELEC, despite its role as the
implementing arm of the Government in the
enforcement and administration of all laws and
regulations relative to the conduct of an election,
has neither the authority nor the license to
expand, extend, or add anything to the law it
seeks to implement thereby. The IRRs the
COMELEC issued for that purpose should always
be in accord with the law to be implemented, and
should not override, supplant, or modify the law.
It is basic that the IRRs should remain consistent
with the law they intend to carry out.
Indeed, administrative IRRs adopted by a
particular department of the Government under
legislative authority must be in harmony with the
provisions of the law, and should be for the sole
purpose of carrying the law's general provisions
into effect. The law itself cannot be expanded by
such IRRs, because an administrative agency
cannot amend an act of Congress. 48
In the case of Lokin, Jr., the COMELEC's
explanation that the Resolution then in question
did not add anything but merely reworded and
rephrased the statutory provision did not
persuade the Court. With more reason here since
the COMELEC not only reworded or rephrased the
statutory provision it practically replaced it
with its own idea of what the law should be, a
matter that certainly is not within its authority. As
the Court said in Villegas v. Subido: 49
One last word. Nothing is better settled in the law
than that a public official exercises power, not
rights. The government itself is merely an agency
through which the will of the state is expressed
and enforced. Its officers therefore are likewise
agents entrusted with the responsibility of
discharging its functions. As such there is no
presumption that they are empowered to act.
There must be a delegation of such authority,
either express or implied. In the absence of a
valid grant, they are devoid of power. What they
do suffers from a fatal infirmity. That principle
cannot be sufficiently stressed. In the appropriate
language of Chief Justice Hughes: "It must be
conceded that departmental zeal may not be
permitted to outrun the authority conferred by
statute.'' Neither the high dignity of the office nor
the righteousness of the motive then is an
acceptable substitute. Otherwise the rule of law
becomes a myth. Such an eventuality, we must
take all pains to avoid. 50
So it was then. So does the rule still remains the
same.
d. Section 9 (a) of COMELEC Resolution
No. 9615 on airtime limits also goes
against the constitutional guaranty of
freedom of expression, of speech
and of the press
The guaranty of freedom to speak is useless
without the ability to communicate and
disseminate what is said. And where there is a
need to reach a large audience, the need to
access the means and media for such
dissemination becomes critical. This is where the
press and broadcast media come along. At the
same time, the right to speak and to reach out
would not be meaningful if it is just a token ability
to be heard by a few. It must be coupled with
substantially reasonable means by which the
communicator and the audience could effectively
interact. Section 9 (a) of COMELEC Resolution No.
9615, with its adoption of the "aggregate-based"
airtime limits unreasonably restricts the
guaranteed freedom of speech and of the press.
AcTDaH
Political speech is one of the most important
expressions protected by the Fundamental Law.
"[F]reedom of speech, of expression, and of the
press are at the core of civil liberties and have to
be protected at all costs for the sake of
democracy." 51 Accordingly, the same must
remain unfettered unless otherwise justified by a
compelling state interest.
In regard to limitations on political speech relative
to other state interests, an American case
observed:
A restriction on the amount of money a person or
group can spend on political communication
during a campaign necessarily reduces the
quantity of expression by restricting the number
of issues discussed, the depth of their
exploration, and the size of the audience reached.
This is because virtually every means of
communicating ideas in today's mass society
requires the expenditure of money. The
distribution of the humblest handbill or leaflet
entails printing, paper, and circulation costs.
Speeches and rallies generally necessitate hiring
a hall and publicizing the event. The electorate's
increasing dependence on television, radio, and
other mass media for news and information has
made these expensive modes of communication
indispensable instruments of effective political
speech.
The expenditure limitations contained in the Act
represent substantial, rather than merely
theoretical restraints on the quantity and
diversity of political speech. The $1,000 ceiling on
spending "relative to a clearly identified
candidate," 18 U.S.C. 608(e)(1) (1970 ed., Supp.
IV), would appear to exclude all citizens and
groups except candidates, political parties, and
the institutional press from any significant use of
the most effective modes of communication.
Although the Act's limitations on expenditures by
campaign organizations and political parties
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provide substantially greater room for discussion
and debate, they would have required restrictions
in the scope of a number of past congressional
and Presidential campaigns and would operate to
constrain campaigning by candidates who raise
sums in excess of the spending ceiling. 52
Section 9 (a) of COMELEC Resolution No. 9615
comes up with what is challenged as being an
unreasonable basis for determining the allowable
air time that candidates and political parties may
avail of. Petitioner GMA came up with its analysis
of the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime
minutes in the New Rules, petitioner GMA
estimates that a national candidate will only have
120 minutes to utilize for his political
advertisements in television during the whole
campaign period of 88 days, or will only have
81.81 seconds per day TV exposure allotment. If
he chooses to place his political advertisements
in the 3 major TV networks in equal allocation, he
will only have 27.27 seconds of airtime per
network per day. This barely translates to 1
advertisement spot on a 30-second spot basis in
television.
5.9. With a 20-hour programming per day and
considering the limits of a station's coverage, it
will be difficult for 1 advertising spot to make a
sensible and feasible communication to the
public, or in political propaganda, to "make
known [a candidate's] qualifications and stand on
public issues".
5.10. If a candidate loads all of his 81.81 seconds
per day in one network, this will translate to
barely three 30-second advertising spots in
television on a daily basis using the same
assumptions above.
5.11. Based on the data from the 2012 Nielsen
TV audience measurement in Mega Manila, the
commercial advertisements in television are
viewed by only 39.2% of the average total day
household audience if such advertisements are
placed with petitioner GMA, the leading television
network nationwide and in Mega Manila. In effect,
under the restrictive aggregate airtime limits in
the New Rules, the three 30-second political
advertisements of a candidate in petitioner GMA
will only be communicated to barely 40% of the
viewing audience, not even the voting population,
but only in Mega Manila, which is defined by AGB
Nielsen Philippines to cover Metro Manila and
certain urban areas in the provinces of Bulacan,
Cavite, Laguna, Rizal, Batangas and Pampanga.
Consequently, given the voting population
distribution and the drastically reduced supply of
airtime as a result of the New Rules' aggregate
airtime limits, a national candidate will be forced
to use all of his airtime for political
advertisements in television only in urban areas
such as Mega Manila as a political campaign tool
to achieve maximum exposure.
5.12. To be sure, the people outside of Mega
Manila or other urban areas deserve to be
informed of the candidates in the national
elections, and the said candidates also enjoy the
right to be voted upon by these informed
populace. 53

The Court agrees. The assailed rule on
"aggregate-based" airtime limits is unreasonable
and arbitrary as it unduly restricts and constrains
the ability of candidates and political parties to
reach out and communicate with the people.
Here, the adverted reason for imposing the
"aggregate-based" airtime limits leveling the
playing field does not constitute a compelling
state interest which would justify such a
substantial restriction on the freedom of
candidates and political parties to communicate
their ideas, philosophies, platforms and programs
of government. And, this is specially so in the
absence of a clear-cut basis for the imposition of
such a prohibitive measure. In this particular
instance, what the COMELEC has done is
analogous to letting a bird fly after one has
clipped its wings. ESIcaC
It is also particularly unreasonable and whimsical
to adopt the aggregate-based time limits on
broadcast time when we consider that the
Philippines is not only composed of so many
islands. There are also a lot of languages and
dialects spoken among the citizens across the
country. Accordingly, for a national candidate to
really reach out to as many of the electorates as
possible, then it might also be necessary that he
conveys his message through his advertisements
in languages and dialects that the people may
more readily understand and relate to. To add all
of these airtimes in different dialects would
greatly hamper the ability of such candidate to
express himself a form of suppression of his
political speech.
Respondent itself states that "[t]elevision is
arguably the most cost-effective medium of
dissemination. Even a slight increase in television
exposure can significantly boost a candidate's
popularity, name recall and electability." 54 If that
be so, then drastically curtailing the ability of a
candidate to effectively reach out to the
electorate would unjustifiably curtail his freedom
to speak as a means of connecting with the
people.
Finally on this matter, it is pertinent to quote
what Justice Black wrote in his concurring opinion
in the landmark Pentagon Papers case: "In the
First Amendment, the Founding Fathers gave the
free press the protection it must have to fulfill its
essential role in our democracy. The press was to
serve the governed, not the governors. The
Government's power to censor the press was
abolished so that the press would remain forever
free to censure the Government. The press was
protected so that it could bare the secrets of
government and inform the people. Only a free
and unrestrained press can effectively expose
deception in government." 55
In the ultimate analysis, when the press is
silenced, or otherwise muffled in its undertaking
of acting as a sounding board, the people
ultimately would be the victims.
e. Section 9 (a) of Resolution 9615 is
violative of the people's
right to suffrage
Fundamental to the idea of a democratic and
republican state is the right of the people to
87 | C O N S T I 2 _ S E C 3 _ F R E E D O M O F E X P R E S S I O N
determine their own destiny through the choice
of leaders they may have in government. Thus,
the primordial importance of suffrage and the
concomitant right of the people to be adequately
informed for the intelligent exercise of such
birthright. It was said that:
. . . As long as popular government is an end to
be achieved and safeguarded, suffrage, whatever
may be the modality and form devised, must
continue to be the means by which the great
reservoir of power must be emptied into the
receptacular agencies wrought by the people
through their Constitution in the interest of good
government and the common weal.
Republicanism, in so far as it implies the adoption
of a representative type of government,
necessarily points to the enfranchised citizen as a
particle of popular sovereignty and as the
ultimate source of the established authority. He
has a voice in his Government and whenever
possible it is the solemn duty of the judiciary,
when called upon to act in justifiable cases, to
give it efficacy and not to stifle or frustrate it.
This, fundamentally, is the reason for the rule
that ballots should be read and appreciated, if not
with utmost, with reasonable, liberality. . . . 56
It has also been said that "[c]ompetition in ideas
and governmental policies is at the core of our
electoral process and of the First Amendment
freedoms." 57 Candidates and political parties
need adequate breathing space including the
means to disseminate their ideas. This could not
be reasonably addressed by the very restrictive
manner by which the respondent implemented
the time limits in regard to political
advertisements in the broadcast media.
f. Resolution No. 9615 needs
prior hearing before adoption
The COMELEC promulgated Resolution No. 9615
on January 15, 2013 then came up with a public
hearing on January 31, 2013 to explain what it
had done, particularly on the aggregate-based air
time limits. This circumstance also renders the
new regulation, particularly on the adoption of
the aggregate-based airtime limit, questionable.
It must not be overlooked that the new Resolution
introduced a radical change in the manner in
which the rules on airtime for political
advertisements are to be reckoned. As such there
is a need for adequate and effective means by
which they may be adopted, disseminated and
implemented. In this regard, it is not enough that
they be published or explained after they
have been adopted.
While it is true that the COMELEC is an
independent office and not a mere administrative
agency under the Executive Department, rules
which apply to the latter must also be deemed to
similarly apply to the former, not as a matter of
administrative convenience but as a dictate of
due process. And this assumes greater
significance considering the important and pivotal
role that the COMELEC plays in the life of the
nation. Thus, whatever might have been said in
Commissioner of Internal Revenue v. Court of
Appeals, 58 should also apply mutatis mutandis
to the COMELEC when it comes to promulgating
rules and regulations which adversely affect, or
impose a heavy and substantial burden on, the
citizenry in a matter that implicates the very
nature of government we have adopted:
It should be understandable that when an
administrative rule is merely interpretative in
nature, its applicability needs nothing further
than its bare issuance for it gives no real
consequence more than what the law itself has
already prescribed. When, upon the other hand,
the administrative rule goes beyond merely
providing for the means that can facilitate or
render least cumbersome the implementation of
the law but substantially adds to or increases the
burden of those governed, it behooves the
agency to accord at least to those directly
affected a chance to be heard, and thereafter to
be duly informed, before that new issuance is
given the force and effect of law. AEaSTC
A reading of RMC 37-93, particularly considering
the circumstances under which it has been
issued, convinces us that the circular cannot be
viewed simply as a corrective measure (revoking
in the process the previous holdings of past
Commissioners) or merely as construing Section
142(c)(1) of the NIRC, as amended, but has, in
fact and most importantly, been made in order to
place "Hope Luxury," "Premium More" and
"Champion" within the classification of locally
manufactured cigarettes bearing foreign brands
and to thereby have them covered by RA 7654.
Specifically, the new law would have its
amendatory provisions applied to locally
manufactured cigarettes which at the time of its
effectivity were not so classified as bearing
foreign brands. . . . In so doing, the BIR not simply
interpreted the law; verily, it legislated under its
quasi-legislative authority. The due observance of
the requirements of notice, of hearing, and of
publication should not have been then ignored.
59
For failing to conduct prior hearing before coming
up with Resolution No. 9615, said Resolution,
specifically in regard to the new rule on
aggregate airtime is declared defective and
ineffectual.
g. Resolution No. 9615 does not impose
an unreasonable burden on the
broadcast industry
It is a basic postulate of due process, specifically
in relation to its substantive component, that any
governmental rule or regulation must be
reasonable in its operations and its impositions.
Any restrictions, as well as sanctions, must be
reasonably related to the purpose or objective of
the government in a manner that would not work
unnecessary and unjustifiable burdens on the
citizenry. Petitioner GMA assails certain
requirements imposed on broadcast stations as
unreasonable. It explained:
5.40 Petitioner GMA currently operates and
monitors 21 FM and AM radio stations nationwide
and 8 originating television stations (including its
main transmitter in Quezon City) which are
authorized to dechain national programs for
airing and insertion of local content and
advertisements.
5.41 In light of the New Rules wherein a
candidate's airtime minutes are applied on an
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aggregate basis and considering that said Rules
declare it unlawful in Section 7(d) thereof for a
radio, television station or other mass media to
sell or give for free airtime to a candidate in
excess of that allowed by law or by said New
Rules:
"Section 7. Prohibited Forms of Election
Propaganda. During the campaign period, it is
unlawful:
xxx xxx xxx
(d) for any newspaper or publication, radio,
television or cable television station, or other
mass media, or any person making use of the
mass media to sell or to give free of charge print
space or air time for campaign or election
propaganda purposes to any candidate or party
in excess of the size, duration or frequency
authorized by law or these rules;
xxx xxx xxx"
(Emphasis supplied)
petitioner GMA submits that compliance with the
New Rules in order to avoid administrative or
criminal liability would be unfair, cruel and
oppressive.
xxx xxx xxx.
5.43 In the present situation wherein airtime
minutes shall be shared by all television and
radio stations, broadcast mass media
organizations would surely encounter
insurmountable difficulties in monitoring the
airtime minutes spent by the numerous
candidates for various elective positions, in real
time.
5.44 An inquiry with the National
Telecommunications Commission (NTC) bears out
that there are 372 television stations and 398 AM
and 800 FM radio stations nationwide as of June
2012. In addition, there are 1,113 cable TV
providers authorized by the NTC to operate within
the country as of the said date.
5.45 Given such numbers of broadcast entities
and the necessity to monitor political
advertisements pursuant to the New Rules,
petitioner GMA estimates that monitoring
television broadcasts of all authorized television
station would involve 7,440 manhours per day. To
aggravate matters, since a candidate may also
spend his/her broadcasting minutes on cable TV,
additional 281,040 manhours per day would have
to be spent in monitoring the various channels
carried by cable TV throughout the Philippines. As
far as radio broadcasts (both AM and FM stations)
are concerned, around 23,960 manhours per day
would have to be devoted by petitioner GMA to
obtain an accurate and timely determination of a
political candidate's remaining airtime minutes.
During the campaign period, petitioner GMA
would have to spend an estimated 27,494,720
manhours in monitoring the election campaign
commercials of the different candidates in the
country. caTESD
5.46 In order to carry-out the obligations imposed
by the New Rules, petitioner GMA further
estimates that it would need to engage and train
39,055 additional persons on an eight-hour shift,
and assign them all over the country to perform
the required monitoring of radio, television and
cable TV broadcasts. In addition, it would likewise
need to allot radio, television, recording
equipment and computers, as well as
telecommunications equipment, for this
surveillance and monitoring exercise, thus
imputing additional costs to the company.
Attached herewith are the computations
explaining how the afore-said figures were
derived and the conservative assumptions made
by petitioner GMA in reaching said figures, as
Annex "H".
5.47 Needless to say, such time, manpower
requirements, expense and effort would have to
be replicated by each and every radio station to
ensure that they have properly monitored around
33 national and more than 40,000 local
candidates' airtime minutes and thus, prevent
any risk of administrative and criminal liability. 60
The Court cannot agree with the contentions of
GMA. The apprehensions of the petitioner appear
more to be the result of a misappreciation of the
real import of the regulation rather than a real
and present threat to its broadcast activities. The
Court is more in agreement with the respondent
when it explained that:
The legal duty of monitoring lies with the
Comelec. Broadcast stations are merely required
to submit certain documents to aid the Comelec
in ensuring that candidates are not sold airtime in
excess of the allowed limits. These documents
include: (1) certified true copies of broadcast
logs, certificates of performance, and certificates
of acceptance, or other analogous record on
specified dates (Section 9[d][3], Resolution No.
9615, in relation to Section 6.2, R.A. 9006; and
(2) copies of all contract for advertising,
promoting or opposing any political party or the
candidacy of any person for public office within
five (5) days after its signing (Section 6.3, R.A.
9006).
xxx xxx xxx
[T]here is absolutely no duty on the broadcast
stations to do monitoring, much less monitoring
in real time. GMA grossly exaggerates when it
claims that the non-existent duty would require
them to hire and train an astounding additional
39,055 personnel working on eight-hour shifts all
over the country. 61
The Court holds, accordingly, that, contrary to
petitioners' contention, the Reporting
Requirement for the COMELEC's monitoring is
reasonable.
Further, it is apropos to note that, pursuant to
Resolution No. 9631, 62 the respondent revised
the third paragraph of Section 9 (a). As revised,
the provision now reads:
Appearance or guesting by a candidate on any
bona fide newscast, bona fide news interview,
bona fide news documentary, if the appearance
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of the candidate is incidental to the presentation
of the subject or subjects covered by the news
documentary, or on-the-spot coverage of bona
fide news events, including but not limited to
events sanctioned by the Commission on
Elections, political conventions, and similar
activities, shall not be deemed to be broadcast
election propaganda within the meaning of this
provision. For purposes of monitoring by the
COMELEC and ensuring that parties and
candidates were afforded equal opportunities to
promote their candidacy, the media entity shall
give prior notice to the COMELEC, through the
appropriate Regional Election Director (RED), or in
the case of the National Capital Region (NCR), the
Education and Information Department (EID). If
such prior notice is not feasible or practicable, the
notice shall be sent within twenty-four (24) hours
from the first broadcast or publication. Nothing in
the foregoing sentence shall be construed as
relieving broadcasters, in connection with the
presentation of newscasts, news interviews, news
documentaries, and on-the-spot coverage of
news events, from the obligation imposed upon
them under Sections 10 and 14 of these Rules."
63
Further, the petitioner in G.R. No. 205374 assails
the constitutionality of such monitoring
requirement, contending, among others, that it
constitutes prior restraint. The Court finds
otherwise. Such a requirement is a reasonable
means adopted by the COMELEC to ensure that
parties and candidates are afforded equal
opportunities to promote their respective
candidacies. Unlike the restrictive aggregate-
based airtime limits, the directive to give prior
notice is not unduly burdensome and
unreasonable, much less could it be
characterized as prior restraint since there is no
restriction on dissemination of information before
broadcast.
Additionally, it is relevant to point out that in the
original Resolution No. 9615, the paragraph in
issue was worded in this wise:
Appearance or guesting by a candidate on any
bona fide newscast, bona fide news interview,
bona fide news documentary, if the appearance
of the candidate is incidental to the presentation
of the subject or subjects covered by the news
documentary, or on-the-spot coverage of bona
fide news events, including but not limited to
events sanctioned by the Commission on
Elections, political conventions, and similar
activities, shall not be deemed to be broadcast
election propaganda within the meaning of this
provision. To determine whether the appearance
or guesting in a program is bona fide, the
broadcast stations or entities must show that (1)
prior approval of the Commission was secured;
and (2) candidates and parties were afforded
equal opportunities to promote their candidacy.
Nothing in the foregoing sentence shall be
construed as relieving broadcasters, in
connection with the presentation of newscasts,
news interviews, news documentaries, and on-
the-spot coverage of news events, from the
obligation imposed upon them under Sections 10
and 14 of these Rules. 64 caITAC
Comparing the original with the revised
paragraph, one could readily appreciate what the
COMELEC had done to modify the requirement
from "prior approval" to "prior notice." While the
former may be suggestive of a censorial tone,
thus inviting a charge of prior restraint, the latter
is more in the nature of a content-neutral
regulation designed to assist the poll body to
undertake its job of ensuring fair elections
without having to undertake any chore of
approving or disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior
notice" requirement as not constitutionally infirm,
it similarly concludes that the "right to reply"
provision is reasonable and consistent with the
constitutional mandate.
Section 14 of Resolution No. 9615, as revised by
Resolution No. 9631, provides:
SECTION 14. Right to Reply. All registered
political parties, party-list groups or coalitions and
bona fide candidates shall have the right to reply
to charges published or aired against them. The
reply shall be given publicity by the newspaper,
television, and/or radio station which first printed
or aired the charges with the same prominence or
in the same page or section or in the same time
slot as the first statement.
Registered political parties, party-list groups or
coalitions and bona fide candidates may invoke
the right to reply by submitting within a non-
extendible period of forty-eight hours from first
broadcast or publication, a formal verified claim
against the media outlet to the COMELEC,
through the appropriate RED. The claim shall
include a detailed enumeration of the
circumstances and occurrences which warrant the
invocation of the right to reply and must be
accompanied by supporting evidence, such a
copy of the publication or recording of the
television or radio broadcast, as the case may be.
If the supporting evidence is not yet available due
to circumstances beyond the power of the
claimant, the latter shall supplement his claim as
soon as the supporting evidence becomes
available, without delay on the part of the
claimant. The claimant must likewise furnish a
copy of the verified claim and its attachments to
the media outlet concerned prior to the filing of
the claim with the COMELEC.
The COMELEC, through the RED, shall view the
verified claim within forty-eight (48) hours from
receipt thereof, including supporting evidence,
and if circumstances warrant, give notice to the
media outlet involved for appropriate action,
which shall, within forty-eight (48) hours, submit
its comment, answer or response to the RED,
explaining the action it has taken to address the
claim. The media outlet must likewise furnish a
copy of the said comment, answer or response to
the claimant invoking the right to reply.
Should the claimant insist that his/her right to
reply was not addressed, he/she may file the
appropriate petition and/or complaint before the
Commission on Elections or its field offices, which
shall be endorsed to the Clerk of Court.
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The attack on the validity of the "right to reply"
provision is primarily anchored on the alleged
ground of prior restraint, specifically in so far as
such a requirement may have a chilling effect on
speech or of the freedom of the press.
Petitioner ABC states, inter alia:
5.145. A "conscious and detailed consideration"
of the interplay of the relevant interests the
constitutional mandate granting candidates the
right to reply and the inviolability of the
constitutional freedom of expression, speech, and
the press will show that the Right to Reply, as
provided for in the Assailed Resolution, is an
impermissible restraint on these fundamental
freedoms.
5.146. An evaluation of the factors set forth in
Soriano (for the balancing of interests test) with
respect to the present controversy will show that
the Constitution does not tilt the balance in favor
of the Right to Reply provision in the Assailed
Resolution and the supposed governmental
interest it attempts to further. 65
The Constitution itself provides as part of the
means to ensure free, orderly, honest, fair and
credible elections, a task addressed to the
COMELEC to provide for a right to reply. 66 Given
that express constitutional mandate, it could be
seen that the Fundamental Law itself has
weighed in on the balance to be struck between
the freedom of the press and the right to reply.
Accordingly, one is not merely to see the
equation as purely between the press and the
right to reply. Instead, the constitutionally-
mandated desiderata of free, orderly, honest,
peaceful, and credible elections would necessarily
have to be factored in trying to see where the
balance lies between press and the demands of a
right-to-reply. IASCTD
Moreover, as already discussed by the Court in
Telecommunications and Broadcast Attorneys of
the Philippines, Inc. v. Commission on Elections.
67
In truth, radio and television broadcasting
companies, which are given franchises, do not
own the airwaves and frequencies through which
they transmit broadcast signals and images. They
are merely given the temporary privilege of using
them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be
burdened with the performance by the grantee of
some form of public service. . . . 68
Relevant to this aspect are these passages from
an American Supreme Court decision with regard
to broadcasting, right to reply requirements, and
the limitations on speech:
We have long recognized that each medium of
expression presents special First Amendment
problems. Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of
all forms of communication, it is broadcasting
that has received the most limited First
Amendment protection. Thus, although other
speakers cannot be licensed except under laws
that carefully define and narrow official
discretion, a broadcaster may be deprived of his
license and his forum if the Commission decides
that such an action would serve "the public
interest, convenience, and necessity." Similarly,
although the First Amendment protects
newspaper publishers from being required to
print the replies of those whom they criticize,
Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no
such protection to broadcasters; on the contrary,
they must give free time to the victims of their
criticism. Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex,
but two have relevance to the present case. First,
the broadcast media have established a uniquely
pervasive presence in the lives of all Americans.
Patently offensive, indecent material presented
over the airwaves confronts the citizen not only in
public, but also in the privacy of the home, where
the individual's right to be left alone plainly
outweighs the First Amendment rights of an
intruder. Rowan v. Post Office Dept., 397 U.S. 728,
25 L Ed 2d 736, 90 S Ct 1484. Because the
broadcast audience is constantly tuning in and
out, prior warnings cannot completely protect the
listener or viewer from unexpected program
content. To say that one may avoid further
offense by turning off the radio when he hears
indecent language is like saying that the remedy
for an assault is to run away after the first blow.
One may hang up on an indecent phone call, but
that option does not give the caller a
constitutional immunity or avoid a harm that has
already taken place.
Second, broadcasting is uniquely accessible to
children, even those too young to read. Although
Cohen's written message might have been
incomprehensible to a first grader, Pacifica's
broadcast could have enlarged a child's
vocabulary in an instant. Other forms of offensive
expression may be withheld from the young
without restricting the expression at its source.
Bookstores and motion picture theaters, for
example, may be prohibited from making
indecent material available to children. We held
in Ginsberg v. New York, 390 U.S. 629, that the
government's interest in the "well-being of its
youth" and in supporting "parents' claim to
authority in their own household" justified the
regulation of otherwise protected expression. The
ease with which children may obtain access to
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broadcast material, coupled with the concerns
recognized in Ginsberg, amply justify special
treatment of indecent broadcasting. 69
Given the foregoing considerations, the
traditional notions of preferring speech and the
press over so many other values of society do not
readily lend itself to this particular matter.
Instead, additional weight should be accorded on
the constitutional directive to afford a right to
reply. If there was no such mandate, then the
submissions of petitioners may more easily
commend themselves for this Court's acceptance.
But as noted above, this is not the case. Their
arguments simplistically provide minimal
importance to that constitutional command to the
point of marginalizing its importance in the
equation.
In fine, when it comes to election and the
exercise of freedom of speech, of expression and
of the press, the latter must be properly viewed
in context as being necessarily made to
accommodate the imperatives of fairness by
giving teeth and substance to the right to reply
requirement.
WHEREFORE, premises considered, the petitions
are PARTIALLY GRANTED, Section 9 (a) of
Resolution No. 9615, as amended by Resolution
No. 9631, is declared UNCONSTITUTIONAL and,
therefore, NULL and VOID. The constitutionality of
the remaining provisions of Resolution No. 9615,
as amended by Resolution No. 9631, is upheld
and remain in full force and effect.
In view of this Decision, the Temporary
Restraining Order issued by the Court on April 16,
2013 is hereby made PERMANENT.
SO ORDERED. aDECHI
Velasco, Jr., Leonardo-de Castro, Bersamin, Del
Castillo, Villarama, Jr., Perez, Reyes and Perlas-
Bernabe, JJ., concur.
Sereno, C.J. * and Jardeleza, J., ***** are on leave.
Carpio, ** see separate concurring opinion.
Brion, J., *** I certify that J. Brion left his vote
concurring in the result. - Carpio, J.
Mendoza, J., **** I certify that J. Mendoza left his
vote concurring with the ponencia.- Carpio, J.,
Leonen, J., see separate concurring opinion.